E93 
.E92 



ESSAYS 



ON THE 



PRESENT CRISIS IN THE CONDITION 



THE AMERICAN INDIANS ; 



EIRST PUBLISHED IN 



THE NATIONAL INTELLIGENCER, 



UNDER THE SIGNATURE OF 



WILLIAM PENN. 



THOMAS KITE— 64 WALNUT STREET. 
1830. 



ADVERTISEMENT. 



In the letter, which contained the two first papers of the following 1 series, ad- 
dressed to the Editors of the National Intelligencer, an introductory statement 
was given, for the purpose of disclosing the general design of the writer, and de- 
scribing the manner in which he intended to pursue the investigation. It is deem- 
ed proper to copy that statement, as a preface to the formal discussion. 

Gentlemen : I send for your paper two numbers of a series of Essays on the 
pending and ripening controversy between the United States and the Indians. I 
hope you will insert them. Permit me as an inducement, to make the following 
suggestions : 

1. This is a subject which must be abundantly discussed in our country. 

2. It will be among the most important, and probably the most contested, busi- 
ness of the 21st Congress. Some able members of Congress, to my certain know- 
ledge, wish to have the matter discussed. 

3. I expect to make it s,ppear, by a particular examination of treaties, that the 
United States are bound to secure to the Cherokees the integrity and inviolabili- 
ty of their territory, till they voluntarily surrender it. 

4. In the course of this investigation, I shall not agree with the present Execu- 
tive of the United States, in the construction which he gives to treaties ; but shall 
be sustained by the uniform tenor of our negotiations with the Indians, and legis- 
lation for them, from the origin of our government to the present day. 

5. My discussions will not assume a party character at all ; and whenever I 
speak of the President, or the Secretary at War, it shall always be by their offi- 
cial designation, and in a respectful manner. Though I think that the President 
has greatly mistaken his powers and his duty, in regard to the Indians, I have no 
wish concerning him, but that he may be a wise and judicious ruler of our grow- 
ing republic. 

1 have always approved of the decorum which you have observed, in speaking 
of public characters. 

6. I propose to furnish two numbers a week, that they may be copied into semi- 
weekly papers, if their editors see fit. 

7. The two numbers now sent have been read to an eminent civilian, and ap- 
proved by him ; and I shall endeavour to be careful in my principles, and accu- 
rate in my conclusions. At any rate, should I fall into error, I am perfectly wil- 
ling that my error should be exposed. 

8. Should you insert these papers as I hope you may, I would request that there 
may be as little delay as possible : for there are many symptoms that the country 
will be awake to the discussion, and is impatient for it. 

In the mean time," permit me to use the signature of that upright legislator and 
distinguished philanthropist, WILLIAM PENN 

Daily Nat. Intell. Aug. 1 . 1 829.] • 



PRESENT CRISIS IN THE CONDITION 

OF THE 

AMERICAN INDIANS. 



No. 1. 

Contents of this Number. — Information needed — Great interests at stake — The 
character of our country involved — The world will judge in the case — Value 
of national character — Apprehensions of the divine displeasure — Statement of 
the controversy. 

Every careful observer of public affairs must have seen, that a cri- 
sis has been rapidly approaching, for several years past, in reference 
to the condition, relations, and prospects, of the Indian tribes, in the 
southwestern parts of the United States. The attention of many of our 
most intelligent citizens has been fixed upon the subject with great in- 
terest. Many others are beginning to inquire. Several public docu- 
ments, which have recently appeared in the newspapers, serve to awa- 
ken curiosity, and to provoke investigation. 

Still, however, the mass of the community possess but very little in- 
formation on the subject ; and, even among the best informed, scarcely 
a man can be found, who is thoroughly acquainted with the questions 
at issue. Vague and inconsistent opinions are abroad ; and however 
desirous the people may be of coming at the truth, the sources of 
knowledge are not generally accessible. Some persons think, that the 
Indians have a perfect right to the lands which they occupy, except so 
far as. their original right has been modified by treaties fairly made, and 
fully understood at the time of signing. But how far such a modifica- 
tion may have taken place, or whether it has taken place at all, these 
persons admit themselves to be ignorant. Others pretend, that In- 
dians have no other right Jk> their lands, than that of a tenant at will; 
that is, the right of remaining where they are, till the owners of the land 
shall require them to remove. It is needless to say, that, in the estima- 
tion of such persons, the white neighbours of the Indians are the real 
owners of the land. Some people are puzzled by what is supposed to 
he a collision between the powers of the general government and the 



4 



claims of particular States. Others do not see that there is any hard- 
ship in bringing the Indians under the laws of the States, in the neigh- 
bourhood of which they live ; or, as the phrase is, within the limits of 
which they live. Some consider it the greatest kindness that can be 
done to the Indians to remove them, even without their consent and 
against their will, to a country where, as is supposed, they will be in a 
condition more favourable to their happiness. Others think, that if they 
are compelled to remove, their circumstances will be in all respects 
worse than at present ; and that, suffering under a deep sense of injury, 
and considering themselves trodden down by the march of inexorable op- 
pression, they will become utterly dispirited, and sink rapidly to the low- 
est degradation, and to final extinction. 

So great a diversity of opinion is principally owing to want of cor- 
rect information. It is my design, Messrs. Editors, to furnish, in a few 
numbers of moderate length, such materials, as will enable every dis- 
passionate and disinterested man to determine where the right of the 
case is. 

In the mean time, I would observe, that the people of the United 
States owe it to themselves, and to mankind, to form a correct judg- 
ment in this matter. The questions have forced themselves upon us, 
as a nation : — What is to become of the Indians ? Have they any rights? 
If they have, What are these rights? and how are they to be secured? 
These questions must receive a practical answer ; and that very soon. 
What the answer shall be, is a subject of the deepest concern to the 
country. 

The number of individuals, who are interested in the course now to 
be pursued, is very great. It is computed, that there are within our 
national limits more than 300,000 Indians ; some say 500,000 ; and, 
in the southwestern States, the tribes whose immediate removal is in 
contemplation, have an aggregate population of more than 60,000. 
The interests of all these people are implicated, in any measure to be 
taken respecting them. 

The character of our government, and of our country, may be deeply 
involved. Most certainly an indelible stigma will be fixed upon us, if, 
in the plenitude of our power, and in the pride of our superiority, we 
shall be guilty of manifest injustice to our weak and defenceless neigh- 
bours. There are persons among us, not ignorant, nor prejudiced, nor 
under the bias of private interest, who seriously apprehend, that there is 
danger of our national character being most unhappily affected, before 
the subject shall be fairly at rest. If these individuals are misled by an 
erroneous view of facts, or by the adoption of false principles, a free 
discussion will relieve their minds. 

It should be remembered, by our rulers as well as others, that this 
controversy, (for it has assumed the form of a regular controversy,) 
will ultimately be well understood by the whole civilized world. No 
subject, not even war, nor slavery, nor the nature of free institutions, 
will be more thoroughly canvassed. The vpice of mankind will be 
pronounced upon it ; — a voice, which will not be drowned by the clamor 
of ephemeral parties, nor silenced by the paltry considerations of local 
or private interest. Such men as the Baron Humboldt and the Due de 
Broglie, on the continent of Europe, and a host of other statesmen, and 
orators, and powerful writers, there and in Great Britain, will not be 



5 



greatly influenced, in deciding a grave question of public morality, by 
the excitements of one of our elections, or the selfish views of some 
little portions of the American community. Any course of measures, 
in regard to the Indians, which is manifestly fair, and generous, and 
benevolent, will command the warm and decided approbation of intelli- 
gent men, not only in the present age, but in all succeeding times. And 
with equal confidence it may be said, if, in the phraseology of Mr. Jef- 
ferson, the people of the United States should " feel power, and forget 
right ;" — if they should resemble a man, who, abounding in wealth of 
every kind, and assuming the office of lawgiver and judge, first declares 
himself to be the owner of his poor neighbour's little farm, and then 
ejects the same neighbour as a troublesome incumbrance ; — if, with land 
enough, now in the undisputed possession of the whites, to sustain ten 
times our present population, we should compel the remnants of tribes 
to leave the places, which, received by inheritance from their fathers and 
never alienated, they have long regarded as their permanent homes ; — 
if, when asked to explain the treaties, which we first proposed, then 
solemnly executed, and have many times ratified, we stammer, and pre- 
varicate, and complete our disgrace by an unsuccessful attempt to stul- 
tify, not merely ourselves, but the ablest and wisest statesmen, whom 
our country has yet produced ; — and if, in pursuance of a narrow and 
selfish policy, we should at this day, in a time of profound peace and 
great national prosperity, amidst all our professions of magnanimity and 
benevolence, and in the blazing light of the nineteenth century, drive 
away these remnants of tribes, in such a manner, and under such au- 
spices, as to insure their destruction ; — if all this should hereafter 
appear to be a fair statement of the case ; — then the sentence of an 
indignant world will be uttered in thunders, which will roll and rever- 
berate for ages after the present actors in human affairs shall have pass- 
ed away. If the people of the United States will imitate the ruler who 
coveted Naboth's vineyard, the world will assuredly place them by the 
side of Naboth's oppressor. Impartial history will not ask them, whe- 
ther they will feel gratified and honored by such an association. Their 
consent to the arrangement will not be necessary. The revolution of 
the earth in its orbit is not more certain. 

It may be truly said, that the character which a nation sustains, in its 
intercourse with the great community of nations, is of more value than 
any other of its public possessions. Our diplomatic agents have uni- 
formly declared, during the whole period of our national history, in their 
discussions with the agents of foreign powers, that we offer to others the 
same justice which we ask from them. And though, in times of nation- 
al animosity, or when the interests of different communities clash with 
each other, there will be mutual reproaches and recriminations, and 
every nation will, in its turn, be charged with unfairness or injustice, 
still, among nations, as among individuals, there is a difference between 
the precious and the vile; and that nation will undoubtedly, in the long 
course of years, be most prosperous and most respected, which most se- 
dulously cherishes a character for fair dealing, and even generosity, in 
all its transactions. 

There is a higher consideration still. The Great Arbiter of Nations 
never fails to take cognizance of national delinquencies. No sophistry 



5 



can elude his scrutiny ; no array of plausible arguments, or of smooth 
but hollow professions, can bias his judgment ; and he has at his disposal 
most abundant means of executing his decisions. In many forms, and 
with awful solemnity, he has declared his abhorrence of oppression in 
every shape ; and especially of injustice perpetrated against the weak by 
the strong, when strength is in fact made the only rule of action. The 
people of the United States are not altogether guiltless, in regard to their 
treatment of the aborigines of this continent ; but they cannot as yet be 
charged with any systematic legislation on this subject, inconsistent 
with the plainest principles of moral honesty. At least, I am not aware 
of any proof, by which such a charge could be sustained. 

Nor do I, in these preliminary remarks, attempt to characterize mea- 
sures now in contemplation. But it is very clear, that our government 
and our people should be extremely cautious, lest, in judging between 
ourselves and the Indians, and carrying our own judgment into execu- 
tion with a strong hand, we incur the displeasure of the Most High. — 
Some very judicious and considerate men in our country think, that our 
public functionaries should stop where they are ; that, in the first place, 
we should humble ourselves before God and the world, that we have 
done so much to destroy the Indians, and so little to save them ; and 
that, before another step is taken, there should be the most thorough 
deliberation, on the part of all our constituted authorities, lest we act in 
such a manner as to expose ourselves to the judgments of Heaven. 

I would have omitted this topic, if I thought that a majority of read- 
ers would regard it its introduction as a matter of course, or as a piece 
of affectation, designed for rhetorical embellishment. In my delibe- 
rate opininion, it is more important, and should be more heeded, than 
all other considerations relating to the subject ; and the people of the 
United States will find it so, if they should unhappily suppose them- 
selves above the obligation to do justly, love mercy, and walk humbly 
with their God. 

I close this introductory number, by stating what seems to be the 
present controversy between the whites and the Indian tribes of the 
southwestern States : I say the whites, (that is our country generally,) 
because certain positions are taken by the government of the United 
States, and certain claims are made by the State of Georgia, and cer- 
tain other claims by the States of Alabama and Mississippi. The In- 
dians do not admit the validity of any of these positions or claims ; and 
if they have a perfect original title to the lands they occupy, which title 
they have never forfeited or alienated, their rights cannot be affected by 
the charters of kings, nor by the acts of provincial legislatures, nor by 
the compacts of neighbouring states, nor by the mandates of the execu- 
tive branch of our national government. 

The simple question is : Have the Indian tribes, residing as separate 
communities in the neighbourhood of the whites, a permanent title to the 
territory, which they inherited from their fathers, which they have neither 
forfeited nor sold, and which they now occupy ? 

For the examination of this question, let the case of a single tribe or 
nation be considered ; for nearly the same principles are involved in the 
claims of all the Indian nations. 

The Cherokees contend, that their nation has been in possession of 



1 



their present territory from time immemorial ; that neither the king of 
Great Britain, nor the early settlers of Georgia, nor the state of Georgia 
after the revolution, nor the United States since the adoption of the fede- 
ral constitution, have acquired any title to the soil, or any sovereignty 
over the* territory ; and that the title to the soil and sovereignty over 
the territory have been repeatedly guaranteed to the Cherokees, as a 
nation, by the United States, in treaties which are now binding on both 
parties. 

The government of the United States alleges, as appears by a letter 
from the Secretary of War,* dated April, 1829, that Great Britain, pre- 
vious to the revolution, " claimed entire sovereignty within the limits of 
what constituted the thirteen United States ;" that £ all the rights of sove- 
reignty which Great Britain had within said states became vested in said 
states respectively, as a consequence of the declaration of independence, 
and the treaty of 1783 that the Cherokees were merely 'permitted' 
to reside on their lands by the United States ; that this permission is not 
to be construed so as to deny to Georgia the exercise of sovereignty; 
and that the United States has no power to guarantee any thing more 
than a right of possession, till the state of Georgia should see fit to legis- 
late for the Cherokees, and dispose of them as she should judge expe- 
dient, without any control from the general government. 

This is a summary of the positions taken by the Secretary of War ; 
and, though not all of them expressed in his own language, they are in 
strict accordance with the tenor of his letter. 

In my next number, I shall proceed to inquire, What right have the 
Cherokees to the lands which they occupy ? 



No. II. 

• 

The Cherokees have the same rights as other men — They are not hunters — They 
have sold much good land to the United States — Original extent of their coun- 
try — Its present extent — The mere claims of one party cannot affect the rights 
of another party — Necessity of examining treaties. 

In my first number I prepared the way to inquire, ' What right have 
the Cherokees to the landp which they occupy ? This is a plain question* 
and easily answered. 

The Cherokees are human beings, endowed by their Creator with the 
same natural rights as other men. They are in peaceable possession of 
a territory which they have always regarded as their own. This terri- 
tory was in possession of their ancestors, through an unknown series of 
generations, and has come down to them with a title absolutely unin- 
cumbered in every respect. It is not pretended, that the Cherokees have 
ever alienated their country, or that the whites have ever been in posses- 
sion of it. 

If the Cherokees are interrogated as to their title, they can truly say* 



* See Appendix, 



8 



" God gave this country to our ancestors. We have never been in bon- 
dage to any man. Though we have sold much land to our white neigh- 
bors, we have never bought any from them. "VVe own the land which 
we now occupy, by the right of the original possessors ; a right which 
is allowed in all countries to be of incontestible validity. We assert, 
therefore, that no human power can lawfully compel us to leave our 
lands." 

If the Cherokees are correct in their statement of facts, who can resist 
their conclusion ? We might as well ask the Chinese, what right they 
have to the territory which they occupy. To such a question they would 
answer, " God gave this land to our ancestors. Our nation has always 
been in possession of it, so far as history and tradition go back. The 
nations of Europe are comparatively of recent origin ; the commence- 
ment of ours is lost in remote antiquity." 

What can be said to such a statement as this ? Who can argue so 
plain a case ? 

It has been alleged, that the savage of the wilderness can acquire no 
title to the forests, through which he pursues his game. Without ad- 
mitting this doctrine, it is sufficient to reply here, that it has no applica- 
tion to the case of the Cherokees. They are at present neither savages 
nor hunters. It does not appear that they ever were mere wanderers, 
without a stationary residence. At the earliest period of our becoming 
acquainted with their condition, they had fixed habitations, and were in 
undisputed possession of a widely extended country. They were then 
in the habit of cultivating some land near their houses, where they planted 
Indian corn, and other vegetables. From about the commencement of 
the present century, they have addicted themselves more and more to 
agriculture, till they now derive their support from the soil, as truly and 
entirely as do the inhabitants of Pennsylvania or Virginia. For many 
years they have had their herds, and their large cultivated fields. They 
now have, in addition, their schools, a regular civil government, and 
places of regular Christian worship. They earn their bread by the 
labor of their own hands, applied to the tillage of their own farms ; and 
they clothe themselves with fabrics made at their own looms, from 
cotton grown in their own. fields. 

The Cherokees did not show themselves unwilling to sell their lands, 
so long as an adequate motive was presented to their minds. During 
every administration of our national government, applications were 
made to them for the purpose of obtaining additional portions of their 
territory. These applications were urged, not only, nor principally, by 
the consideration of the money or presents which they were to receive 
in exchange, but often, and strongly, by the consideration that they 
would become an agricultural people, like the whites — that it was for 
their interest to have their limits circumscribed, so that their young men 
could not have a great extent of country to hunt in ; and that, when they 
became attached to the soil, and engaged in its cultivation, the United 
States would not ask them to sell any more land. Yielding to these 
arguments, and to the importunities of the whites, the Cherokees sold, 
at different times, between the close of the revolutionary war and the 
year 1820, more than three quarters of their original inheritance. That 



9 



the reader may have some definite idea of the territory in question, he 
should pursue the following delineation by the aid of a good map. 

It would seem that the Cherokees possessed land extending to the 
following limits, if not beyond them, viz : From the mouth of Duck 
river, in Tennessee, on the west, to the waters of French Broad, in North 
Carolina, on the east ; and from the head waters of the Holston, in 
Virginia, on the north, to some distance down the Oconee, in Georgia, on 
the south ; comprising, beside what is now the Cherokee country, more 
than half of the State of Tennessee, the southern part of Kentucky, 
the southwest corner of Virginia, a considerable portion of both of 
the Carolinas, a small portion of Georgia, and the northern part of 
Alabama. This tract probably contained more than 35,000,000 acres, 
of which a large proportion is extremely fertile, and some of it not infe- 
rior to any land in North America, or perhaps in the world. The coun- 
try is also generally healthy, and the climate delightful. Of all this vast 
and beautiful tract, watered by numerous rivers, which find their way to 
the ocean, some of them circuitously by the Mississippi, and others more 
directly to the gulph of Mexico and the Atlantic, the Cherokees now 
retain less than 8,000,000 acres, of a quality far below the average 
quality of that which they have sold. Georgia claims 5,000,000 acres 
of this remnant, as falling within the map of that State. Alabama claims 
nearly 1,000,000 of the residue. The portions which, in the general 
division, will fall to Tennessee and North Carolina, seem hardly worth 
enquiring about ; for, if the other portions are given up, or taken by 
force, there will be no motive for retaining these. 

To every application made for their lands within the last ten years, 
the Cherokees have said, " We are not disposed to sell any more. We 
have betaken ourselves to an agricultural life. We are making progress 
in civilization. We are attached to our schools and our Christian 
teachers ; to our farms ; to our native rivers and mountains. We have 
not too much land for our own comfort, and for affording us a fair chance 
in the experiment we are making." This language has been repeated 
in many forms, and with every indication of sincerity and earnestness. 

The assertion of the Cherokees, that their present country is not too 
large for a fair experiment in the work of civilization, is undoubtedly 
correct. The wisest men, who have thought and written on this subject, 
agree in the opinion, that no tribe of Indians can rise to real civilization, 
and to the full enjoyment of Christian society, unless they can have a 
community of their own ; and can be so much separated from the whites, 
as to form and cherish something of a national character. If the limits 
of the Cherokee country were much smaller than they are, this would 
be impracticable. 

Thus stands the case ; and it is now my intention to inquire how the 
government of the United States has regarded the Indian title, and 
how it has been regarded by the several States in the vicinity of the 
Cherokees. 

Before this inquiry is commenced, however, it is proper to say, that 
the title of one party cannot be safely decided by the mere claims of 
another party. If those claims are founded in justice, they ought to pre- 
vail ; if not, they should be set aside. Now, whatever doctrines the 
government of the United States may have held and promulgated on this 
2 



10 



subject, they cannot be binding upon the Indians, unless acknowledged 
by them to be binding, or unless founded in the immutable principles of 
justice. 

Let us suppose that the kings of Great Britain had issued an annual 
proclamation, from the time of the discovery of America to the peace 
of 1783, claiming all the lands in North America between 30 and 50 
north latitude, and declaring that all the nations, tribes, and communi- 
ties, then residing on said lands, were subject to the laws of Great 
Britain, and that the title to all these lands was vested in, and of right 
belonged to, the crown of that realm ; and let us further suppose, that 
the Government of the United States had issued an annual proclamation, 
from the date of the declaration of independence to the present day, 
applying the same doctrine to our advantage, and declaring, that all the 
Indian nations within the limits prescribed by the peace of 1783, were 
subject to the laws of the United States, and that the lands of which 
they were in possession, belonged of right to the United States, so long 
as the Indians did not acknowledge the binding nature of these claims, 
the mere claims would have amounted to nothing. It was the practice 
of the king of England, during several centuries, to declare himself, (as 
often as he issued a proclamation on any subject whatever,) king of 
Great Britain, France and Ireland. Was he therefore king of France ? 
What if he were now to declare himself king of Great Britain and China 1 
It would be a cheap way, indeed, of acquiring a title, if merely setting 
up a claim would answer the purpose. 

By what right do the people of the United Slates hold the lands which 
they occupy ? The people of Ohio, for instance, or of Connecticut ? 
By the right of occupancy only, commenced by purchase from the 
aboriginal possessors. It would be folly to plead the charters of 
kings, or the mere drawing of lines of latitude and longitude. The 
powers of Europe have indeed acknowledged our right to our country. 
But what if they had not ? Our right is not at all affected by their 
claims, or acknowledgements. The same doctrine is applicable to the 
condition of the Cherokees. They have a perfect right to their coun- 
try, — the right of peaceable, continued, immemorial occupancy ; — and 
although their country may be claimed by others, it may lawfully be held 
by the possessors against all the world.* 

The Cherokees need not fear, however, that their rights are in dan- 
ger, as a consequence of any principles sanctioned by the national 
legislature of the United States. The co-ordinate branches of our 
government have not yet declared, that Indians are tenants at will. On 
the other hand, the whole history of our negotiations with them, from 
the peace of 1783 to the last treaty to which they are a party, and of 
all our legislation concerning them, shows, that they are regarded as a 
separate community from ours, having a national existence, and posses- 
sing a territory, which they are to hold in full possession, till they volun- 
tarily surrender it. 

* Some shallow writers on this subject have said, that " the Cherokees have 
only the title of occupancy ; just as though the title of occupancy were not the best 
title in the world, and the only original foundation of every other title. Every reader 
of Blackstone knows this to be the fact. As to the past, the Cherokees have im- 
memorial occupancy; as to the future, they have a perfect right to occupy their 
country indefinitely. What can they desire more ? 



11 



I now proceed to the examination of treaties, between the United 
States and the Cherokee nation. And here I would apprize the reader, 
that the case can never be fairly and fully understood, without a reference 
to every material article, in every treaty which has been made between 
these parties. Unless such a reference is had, no reader can be sure 
that he has a view of the whole ground ; and a caviller might object, 
that there had been omissions, in order to conceal a weak part of the 
case. This is a subject, too, which the people of the United States 
must have patience to investigate. When measures are in progress, 
which have a bearing on the permanent rights and interests of all the 
Indians, it must not be thought tedious to read an abstract of the solemn 
engagements, by which we have become bound to one of these aborigi- 
nal nations. 

In the revolutionary contest, the Cherokees took part with the king 
of Great Britain, under whose protection they then considered them- 
selves, just as they now consider themselves under the protection of the 
United States. After the peace of 1783, it does not appear that any 
definite arrangement was made with this tribe till the year 1785. In 
the course of that year, the old Congress appointed four commissioners 
plenipotentiary, men of distinction at the south, to meet the head men 
and warriors of the Cherokees, and negociate a treaty of peace. 

The parties met at Hopewell, now in Pendleton District, S. C. ; and, 
on the 28th of November, executed an instrument, which is usually cited 
as the treaty of Hopewell. The abstract of this instrument, with some 
remarks upon it, will be given in my next number. 



No. III. 

First compact between the United States and the Cherokees ; viz. the treaty of 
Hopewell — Abstract of this treaty — Reasons for thinking it still in force — The 
Old Congress had the power to make treaties — Argument of the Secretary of 
War — Meaning of the phrases to give peace, and to allot* 

The title of the treaty to which I referred in my last number, is in 
these words : 

" Articles concluded at Hopewell, on the Keowee, between Benjamin Hawkins, 
Andrew Pickens, Joseph Martin, and Lachlan Mcintosh, commissioners plenipo- 
tentiary of the United States of America, of the one part, and the head men and 
warriors of all the Cherokees, of the other :" 

The preface to the articles is thus expressed : 

" The commissioners plenipotentiary of the United States in Congress assem- 
bled, give peace to all the Cherokees, and receive them into the favour and pro- 
tection of the United States of America, on the following conditions :" 

Before I proceed to make an abstract of the articles, it is proper to 
say, that in regard to this and all subsequent treaties, I shall be as brief 
as appears to be consistent with putting the reader in full possession of 
the case. The more material parts of treaties I shall cite literally ; and 
these will be distinguished by double inverted commas. Other parts 



12 



will be abridged ; but where the principal words of any abridgment are 
taken from the treaties, such passages will be marked by single inverted 
commas. The less material parts will be expressed as briefly as possi- 
ble in my own language ; but in all these cases I pledge myself to the 
strictest fidelity. At least the subject of every article shall be mentioned, 
that the reader may judge of the general aspect of the whole, as well 
as of the meaning of the most important parts. The treaty of Hope- 
well, then, reads as follows : 

Art. 1. The head men and warriors of all the Cherokees shall restore all the 
prisoners, citizens of the United States, or subjects of their allies, to their entire 
liberty : they shall also restore all the negroes, and all other property taken dur- 
ing the late war, from the citizens, to such person, and at such time and place, as 
the commissioners shall appoint. 

" Art. 2. The commissioners of the United States in Congress assembled, shall 
restore all the prisoners taken from the Indians during the late war, to the head 
men and warriors of the Cherokees, as early as is practicable. 

M Art. 3. The said Indians, for themselves, and their respective tribes and 
towns, do acknowledge all the Cherokees to be under the protection of the Uni- 
ted States of America, and of no other sovereign whatsoever. 

" Art. 4. The boundary allotted to the Cherokees for their hunting grounds, 
between the said Indians and the citizens of the United States, within the limits 
of the United States of America, is, and shall be the following:" This boundary 
defines the northern and eastern limits of the Cherokee country. 

14 Art. 5. If any citizen of the United Statos, or other person, not being an In- 
dian, shall attempt to settle on any of the lands westward and southward of the 
said boundary, which are hereby allotted to the Indians for their hunting grounds, 
or having already settled and will not remove from the same within six months af- 
ter the ratification of this treaty, such person shall forfeit the protection of the 
United States, and the Indians may punish him, or not, as they please." Then 
follows a proviso, as to settlers "between the fork of French Broad and Holston," 
whose case is to be referred to Congress. 

" Art. 6. If any Indian, or Indians, or persons residing among them, or who 
shall take refuge in their nation, shall commit a robbery, or murder, or other ca- 
pital crime, on any citizen of the United States, or person under their protection, 
the nation, or the tribe, to which such offender or offenders may belong, shall be 
bound to deliver him or them up, to be punished according to the ordinances of the 
United States ;" * provided that the punishment shall not be greater, than if the 
crime had been committed by a citizen on a citizen.' 

« Art. 7. If any citizen of the United States, or person under their protection, 
shall commit a robbery or murder, or other capital crime, on any Indian," he shall 
be punished in the same manner as if " the crime had been committed on a citi- 
zen ;" and the punishment shall be in the presence of some of the Cherokees, who 
shall have due notice of the time and place. 

Art. 8. No punishment of the innocent for the guilty, on either side, " except 
where there is a manifest violation of this treaty ; and then it shall be preceded 
first by a demand of justice ; and if refused, then by a declaration of hostilities." 

" Art. 9. For the benefit and comfort of the Indians, and for the prevention of 
injuries or oppressions on the part of the citizens or Indians, the United States in 
Congress assembled, shall have the sole and exclusive right of regulating the 
trade with the Indians, and managing all their affairs, in such manner as they 
think proper. 

"Art. 10. Until the pleasure of Congress be known respecting the 9th article," 
a temporary provision is made for the security of traders. 

"Art. 11. The said Indians shall give notice" of any designs "formed in any 
neighbouring tribe, or by any person whomsoever, against the peace, trade, or in- 
terests of the United States. 

" Art. 12. That the Indians may have full confidence in the justice of the Uni- 
ted States, respecting their interests, they shall have a right to send a deputy of 
their choice, whenever they think fit, to Congress. 



13 



« Art. 13. The hatchet shall be forever buried, and the peace given by the 
United States, and friendship re-established between the said States on the one 
part, and all the Cherokees on the other, shall be universal ; and the contracting 
parties shall use their utmost endeavours to maintain the peace given as aforesaid, 
and friendship re-established." 

These articles were signed by the four commissioners of the United 
States, and by thirty-seven head men and warriors of the Cherokees, in 
the presence of William Blount, afterwards Governor of Tennessee, and 
eight other witnesses. In the formulary, which precedes the signatures, 
the articles are called a " Definitive Treaty." 

Among the documents of Congress, published during the last session, 
is a letter from the Honourable Hugh L. White, now senator in Con- 
gress, to Mr. John Ross, at present the chief magistrate of the Cherokee 
nation, in which the writer argues, at some length, that the treaty of 
Hopewell is not now in force, on account of its having been abrogated 
by a subsequent war, and its not being expressly recognised in any sub- 
sequent treaty. 

Mr. White admits, that treaties are not, as a matter of course, abro- 
gated by war ; but he thinks that, in the case before us, such is the 
natural conclusion to be formed, after attending to subsequent treaties. 
I must be permitted to question, whether he would have come to this 
conclusion, if he had seen all the subsequent treaties, and duly consi- 
dered them. 

The following reasons, which have become apparent, in the course 
of this investigation, satisfy me that the treaty of Hopewell is still in 
force. 

1. In all the subsequent treaties, there is no intimation, not even the 
most obscure, that this treaty, or any other, had been abrogated, annul- 
led, or superseded. 

2. In the second treaty of Philadelphia, 1794, the United States give 
money, " to evince their justice," to the Cherokees, " for relinquish- 
ments of land by the treaty of Hopewell, and the treaty of Holston." 
Here both treaties are mentioned in precisely the same manner ; which 
would hardly have been the case, if one of them had been abrogated. 

3. The first article of the third treaty of Tellico, 1 805, is in these 
words : " All former treaties, which provide for the maintenance of 
peace and preventing of crimes, are, on this occasion, recognised and 
continued in force." The treaty of Hopewell was a former treaty, 
which was directed almost wholly to the maintenance of peace and the 
preventing of crimes. 

4. In the second treaty, negociated by General Jackson, 1817, it is 
stipulated, that " the treaties heretofore [made] between the Cherokee 
nation and the United States, are to continue in full force." The 
phrase " the treaties" means the same as all treaties.* 

This is the first treaty made by the United States with either of the 
south-western tribes, or nations. The State of Georgia had, previously 
to the revolutionary war, entered into compacts with the Cherokees, of 

* These reasons were not inserted in the number as originally published. They 
were discovered, as the examination of treaties proceeded. The reader will pro- 
bably think them unanswerable. 



14 



which notice will be taken, at the proper time. After the peace of 

1783, and before the adoption of the federal constitution, the Congress 
made treaties with the Indians, in precisely the same manner as with 
European nations. If the power to do this was doubted, or denied, the 
doubt or denial, has never come to my knowledge. The treaty of 
Hopewell was negotiated by commissioners, all of whom, if I mistake 
not, resided at the south ; and I have never heard that any remonstrance 
was offered by either of the states in the neighbourhood of the Chero- 
kees, on the ground, that the Old Congress had no power to agree upon 
a line of demarkation with the Indians. A line was fixed, in the 4th 
article, securing to the Indians the undisturbed possession of a territory, 
which appeared on the map to be a part of Virginia, the two Carolinas, 
and Georgia ; the States of Kentucky, Tennessee, Alabama, and Mis- 
sissippi, not having then been formed. If this treaty now stood alone, 
and the relations of the parties had not been changed by subsequent 
events, no white man could have " attempted to settle on any of the 
lands within the Cherokee boundary,' 5 even down to the present day, 
however he might have been sustained in his attempt by the constituted 
authorities of any or all of the states, situated in the neighbourhood of 
the Cherokees. Against such an attempt, the Indians would have been 
protected by the faith of the Confederated Republic. This remark is 
made, simply for the sake of drawing the attention of the reader to the 
inviolability of the Indian territory, as strongly implied in the fifth 
article. 

From the phraseology adopted in two or three passages of the treaty, 
the conclusion seems to be drawn by the present Secretary of War, that 
treaties with the Cherokees are not binding upon the whites ; at least, 
not to the extent of their literal and proper meaning. The argument 
stands in this form. The Cherokees fought on the side of the British, 
in the war of independence. The British were beaten: and therefore 
the Cherokees were a conquered people. To a conquered people the 
United States gave peace; and therefore the United States are not 
bound by the very articles which they dictated. They allotted a boun- 
dary to the Cherokees: and therefore the United States are not under 
obligation to respect the boundary, which they themselves allotted. To 
refute such conclusions, established by such a process of reasoning, is 
unnecessary. The very statement of the argument is enough. 

It is true, that the commissioners of the United States, in several trea- 
ties made about the same time, express themselves rather haughtily, 
when they declare that they give peace to the Indians. The fact is well 
known, however, that the whites were much more desirous of peace 
than the Cherokees were. The inhabitants of our frontier settlements 
were in constant dread of incursions from the natives of the forest. 
Impoverished as our country was by a seven years' w T ar, it would have 
been impossible to have scoured the vast wilderness, from the settled 
country to the Mississippi. Any force which could then have been sent, 
would have fared worse than the army of St. Clair did, in a far less dan- 
gerous field, nine years afterwards. 

The Cherokees could not have set up for nice verbal critics of the 
English language, as they did not understand a word of it. It is ques- 
tionable, whether one Indian interpreter in ten would make any differ- 



15 



ence between give peace, and make peace, or agree to a peace. The 
Cherokees doubtless understood, that the United States were desirous 
that there should be an end of fighting ; but it is incredible that they 
should have thought there was lurking, under the phrase of giving peace^ 
any such mysterious implication of superiority on the part of the whites, 
as should ultimately exonerate the superior from all obligation to keep 
faith with his inferior. Least of all could they have supposed, that there 
was a latent power in this phrase, which should destroy the validity of all 
future compacts between the same parties, in not one of which the 
insidious phrase is to be found. 

The phrase to give peace was a favourite one with the Romans, and 
was doubtless copied from them. I think Bonaparte used it also on some 
occasions. But neither the Romans, nor Bonaparte, so far as I know, 
ever soberly contended that a treaty was to be interpreted, otherwise 
than according to the obvious and proper meaning of the words, merely 
because one of the parties assumed rather a haughty air, in some few 
instances of the phraseology. 

As to the word allot, it is said to have been commonly used in the 
southern States as synonymous with fix, or establish. To say that a 
boundary was allotted to the Cherokees, was no more than to say that 
a boundary was established or agreed upon ; for the boundary is not said 
to have been allotted by the United States. It may have been, indeed it 
must have been, as the whole scope of the treaty shows, allotted by the 
consent of both parties.* 



No. IV. 

Apparent inferiority of the United States to the Chickasaws — The Cherokees un- 
der the protection of the United States — Hunting grounds a good designation 
of land — Proofs of equality of rights in the parties — Treaty of Holston, or se- 
cond compact with the Cherokees, 1791 — Title and preamble — The manner in 
which this treaty was negociated and ratified. 

If our statesmen are about to interpret treaties, on the principle of 
favoring the party which assumed a superiority, they must take care lest 
there should be some very unexpected consequences. 

In a treaty formed between the United States and the Chickasaws, in 
the year 1801, and ratified by President Jefferson and the Senate, the 
first article commences thus : " The Mingo, principal men, and warriors 
of the Chickasaw nation of Indians give leave and permission to the Pre- 
sident of the United States of America to lay out, open, and make a con- 
venient wagon road through their land." After stating that the road 
" shall be a highway for the citizens of the United States and the Chick- 
asaws,' 1 and that the Chickasaws "shall appoint two discreet men as 

* The correctness of this criticism on the word allot is abundantly proved, by a 
passage of an act of Congress, which was discovered after this number was writ- 
ten. The passage makes the meaning of lands allotted to the Indians to be synony- 
mous with lands secured to the Indians, 



16 



guides," who shall be paid by the United States for their services, the 
article closes thus : " Provided always, That the necessary ferries over 
the water courses, crossed by the said road, shall be held and deemed to 
be the property of the Chickasaw nation." 

The second article makes a pecuniary compensation to the Chicka- 
saws for " their respectful and friendly attention to the President of the 
United States of America, and to the request made to them, in his name, 
to permit the opening of the road." 

Who is the superior here ? Translate these passages faithfully, and 
send them to the Emperor of China, and let him lay the matter before 
his counsellors, who never heard of the United States. They will say, 
in a moment, that the Mingo of the Chickasawsis a monarch, who, in his 
great condescension, has granted the humble request of the President, on 
the condition that the petitioner shall make a pecuniary compensation, 
and pay tribute, under the name of ferriage, to the Chickasaws, as often 
as any of the President's people pass through the territory of the king of 
the Chickasaws. 

According to the recent code of national morality, what is to be the 
operation of this Chickasaw treaty ? Most undoubtedly, in the first 
place, the Chickasaws may close up the road, the stipulations of the 
treaty to the contrary notwithstanding. Indeed, they must have ex- 
ercised great forbearance already, as they have permitted the road to be 
open twenty seven years, solely out of regard to this treaty ; just as Geor- 
gia has waited twenty-seven years before taking possession of the Che-*' 
rokee territory, out of complaisance to the engagements of the United 
States, which it would seem, are to be discarded as of no validity. 

In the second place, none of the treaties made subsequently by the 
Chickasaws are binding upon them ; and therefore they may reclaimiall 
the lands which they have ceded to the United States. Of course, the 
inhabitants of West Tennessee, who now live on fertile lands, which 
were ceded to the whites by the Chickasaws, must immediately remove, 
if the Chickasaws require it. The reason is plain. No superior can be 
bound to an inferior ; but that the Chickasaws are the superiors, is evi- 
dent, as the Secretary of War says in the other case, because " the em- 
phatic language" of the treaty " cannot be mistaken." 

But it may be said, that there are other indications in the treaty of 
Hopewell, that the United States assumed a superiority, beside the 
phraseology, in the instances above cited. The question is not, be it 
remembered, whether the United States, at the time of the treaty of 
Hopewell, were a more powerful nation than the Cherokees ; but whe- 
ther, being a more powerful nation, they are on that account exempted 
from the obligation of treaties. 

The Cherokees did, undoubtedly, place themselves under the protec- 
tion of the United States, in the third article. They had formerly oeen 
under the protection of the king of Great Britain ; but his power had 
failed them. It was natural that they should accept proffers of protec- 
tion from some other quarter. This is not a new thing in the world. 
From the time of Abraham to the present day, there have been alliances, 
offensive and defensive, confederacies, and smaller states relying for pro- 
tection upon the plighted faith of larger ones. But what is implied in 
the very idea of protection ? Is it not that the party protected is to have 



17 



all its rights secure, not only against others, but against the protector 
also ? If some rights are yielded as the price of protection, is it not that 
other rights may be preserved with the greater care and certainty ? 

It is said that the United States were to have the sole and exclusive 
right of regulating trade with the Cherokees. True : but this was ex- 
pressly declared to be for the benefit of the Indians, and to save them 
from injustice and oppression. These laudable objects were gained to 
a considerable extent ; and, if the laws of the United States on this sub- 
ject had been always carried into full execution, the condition of the In- 
dians would have been rapidly improved, as a consequence of this very 
stipulation. 

It is said that the lands of the Indians are called their " hunting 
grounds and that they could not, therefore, have a permanent inte- 
rest in lands thus described. But how does this appear ? The treaty 
has no limitation of time, nor is there the slightest intimation that it was 
to become weaker by the lapse of years. As the Indians gained their 
principal support by hunting, it was natural to designate their country 
by the phrase " hunting grounds ;" and this is as good a designation, in 
regard to the validity of a title, as any other phrase that could be cho- 
sen. It contains the idea of property, and has superadded the idea of 
constant use. 

But to put the matter beyond all question at once, let me refer to two 
treaties njade at the same place, by three out of four of the same Ameri- 
can Commissioners, within six weeks of the date of the Cherokee treaty. 
In both these documents, " lands'''' are allotted to the Choctaws and 
Chickasaws " to live and hunt on." These lands were secured to the 
Indians, therefore, so long as any of the race survived upon earth. 

Having been occupied some time, in considering the indications of 
superiority, let us look a little at the proofs of equality. I leave to a 
future occasion some remarks upon the words treaty, peace, contracting 
parties, fyc. which carry with them sundry most important significa- 
tions. 

The two first articles are strictly reciprocal. Each party is to restore 
prisoners of war. The articles would be proper, in a treaty between 
France and England. 

The 6th and 7th articles provide that crimes committed against indi- 
viduals of one party, by individuals of the other, shall be punished in the 
same manner. 

The 8th article has the remarkable provision, that no retaliatory mea- 
sures shall be adopted by either party, unless this treaty shall be vio- 
lated ; and even then, before such measures can be adopted, justice must 
have been demanded by the complaining party and refused by the other, 
and " a declaration of hostilities" must have been made. Thus it is ad- 
mitted, as well as in the two first articles, that the Cherokees have the 
same right to declare war, as other powers of the earth have. To de- 
clare war and make peace are enumerated, in our own declaration of 
independence, as among the highest attributes of national sovereignty. 
The other attributes there enumerated are to form alliances and to esta- 
blish commerce. It is a curious fact, that every one of these attributes 
was exercised by the Cherokees, in the negotiation of the treaty of 
Hopewell. 

3 



18 



The present doctrine is, that the Indians were regarded as a sort of 
non-descript tenants at will, enjoying by permission some imperfect pri- 
vilege of hunting on grounds which really belonged to the United States. 
But who ever heard of tenants at will being solemnly admitted to have 
the right of declaring war upon their landlords ? These tenants were 
also strangely allowed to possess the right of punishing, according to 
their pleasure, any of their landlords, who should " attempt to settle" 
upon any lands, which, it is now contended, were then the absolute pro- 
perty of said landlords. But I shall have other occasions of bringing this 
interpretation to the test. 

After the treaty of Hopewell, white settlers pushed forward into the 
wilderness in the neighbourhood of the Indians, difficulties arose ; blood 
was shed ; war was declared ; the new settlements in that quarter were 
in a state of great alarm and anxiety. 

In the mean time, the new constitution had gone into operation. The 
treaty-making power, which had been exercised by the Old Congress, 
was now confided to the President and Senate of the United States. 
General Washington, who always pursued a magnanimous policy to- 
wards the Indians, as well as towards other nations, took the proper 
measures to establish a peace. On the 2d of July, 1791, the treaty of 
Holston was made ; and it was afterwards ratified by President Washing- 
ton and the Senate. The title is in these words : 

" A treaty of peace and friendship, made and concluded between tne President 
of the United States of America, on the part and behalf of the said States, and 
the undersigned chiefs and warriors of the Cherokee nation, on the part and be- 
half of the said nation. 1 " 

PREAMBLE. 

" The parties being desirous of establishing permanent peace and friendship be- 
tween the United States and the said Cherokee nation, and the citizens and mem- 
bers thereof, and to remove the causes of war by ascertaining their limits, and ma- 
king other necessary, just, and friendly arrangements : — the President of the Uni- 
ted States, by William Blount, Governor of the territory of the United States 
south of the River Ohio, and superintendant of Indian affairs for the Southern 
District, who is vested with full powers for these purposes, by and with the advice 
and consent of the Senate of the United States; and the Cherokee nation, by the 
undersigned chiefs and warriors representing the said nation, have agreed to the 
following articles, namely :" 

I have thought it best to cite the whole title and preamble, that the 
reader may see in what manner the parties to this instrument saw fit to 
describe themselves ; or, more properly, in what manner the plenipoten- 
tiary of the United States, with the President and Senate, saw fit to de- 
scribe these parties : for it will not be pretended that the Cherokees 
reduced the treaty to writing. This is the second treaty, which was 
made with Indians, by the government of the United States, after the 
adoption of the Federal Constitution. The first was made with the 
Creek nation; and was executed at New York, August 7th, 1790, by 
Henry Knox, then Secretary of War, as the commissioner of the United 
States, and twenty-four Creek chiefs, in behalf of their nation. In com- 
paring these two treaties, it is found, that the title and preamble of the 
Cherokee treaty are an exact transcript from the other, except that 
" Cherokee" is inserted instead of " Creek," and the word " kings," 
before " chiefs and warriors/' is omitted, 



19 



All the principal articles of the two treaties are of the same tenor, and 
expressed by the same phraseology. As Governor Blount made the 
Cherokee treaty after the model of the Creek treaty, there can be little 
doubt that he was directed to do so, by the head of the War Depart- 
ment. It is morally certain, that the Creek treaty was drawn up, not 
only with great care, but with the concentrated wisdom of a cabinet, 
which is universally admitted, I believe, to have been the ablest and the 
wisest, which our nation has yet enjoyed. General Washington was at 
its head, — always a cautious man, and eminently so in laying the foun- 
dations of our Union, and entering into new relations. This treaty was 
made under his own eye, at the seat of government, and witnessed by 
distinguished men, some of whom added their official stations to their 
names. The two first witnesses were " Richard Morris, Chief Justice 
of the State of New York," and " Richard Varick, Mayor of the City of 
New York." 

These treaties were, in due season, ratified by the Senate of the 
United States, at that time composed of men distinguished for their 
ability. Among them was Oliver Ellsworth, afterwards Chief Justice 
of the United States ; William Patterson, afterwards an eminent Judge 
of the Supreme Court of the United States ; Rufus King, afterwards 
for many years, Minister of the United States at the British Court ; and 
William Samuel Johnson, who did not leave behind him in America, a 
man of equal learning in the Civil Law and the Law of Nations. These 
four individuals, and six other senators, had been members of the con- 
vention, which formed the federal constitution ; though Mr. Ellsworth 
did not sign that instrument, having been called away before it was 
completed. He was a most efficient member, however, in the various 
preparatory discussions ; and did much in procuring the adoption of the 
constitution, by the state which he had represented. 

The reader may fairly conclude, that the document in question is not 
a jumble of words, thrown together without meaning, having no object, 
and easily explained away, as a pompous nullity. On the contrary, it 
was composed with great care, executed with uncommon solemnity, and 
doubtless ratified with ample consideration. It has, therefore, a solid 
basis, and a substantial meaning. That meaning shall be considered in 
a future number. 



No. V. 

What is a treaty ? — of peace ?— and friendship ?— What is a nation ? — The United 
States estopped — The five first Presidents admitted the Cherokees to be a nation 
— First and second articles of the treaty of Holston — Absurdity of the recent 
pretensions of Georgia. 

Having described the manner in which the first Indian treaty, after 
the organization of our present form of government, was negotiated by 
the cabinet of President Washington, and shown that it was ratified by 
senators, not inferior to any of their successors, and who were doubtless 



20 



peculiarly cautious in the first exercise of the treaty-making power ; and 
having ascertained, by a minute comparison, that the important articles 
of the treaty of Holston, executed less than a year afterwards, are a mere 
transcript of the first treaty, I proceed now to inquire, What is the 
meaning of the treaty of Holston ? 

The title and preamble were quoted in my last number. The title 
begins thus : " A treaty of peace and friendship." What is a treaty ? It 
is a compact between independent communities, each party acting 
through the medium of its government. No instrument, which does not 
come within this definition, can be sent to the Senate of the United 
States, to be acted upon as within the scope of the treaty-making 
power. 

If the agents of the United States purchase land for a public object, 
such a purchase is not a treaty. If the State of Virginia, on the appli- 
cation of the United States, cedes a piece of land for a navy yard, or a 
fort, a compact of this sort is not a treaty. If the state of Georgia cedes 
to the United States all its claim to territory, enough for two large 
new states, and the United States agree to make a compensation there- 
for, such cession and agreement are not a treaty. Accordingly, such 
negotiations are carried on and completed by virtue of laws of the Na- 
tional and State Legislatures. Of course, compacts of this kind are 
never called treaties ; and the idea of sending them to the Senate of the 
United States for ratification, would be preposterous. One of the con- 
federated sta'tes is not an independent community ; nor can it make a 
treaty, either with the nation at large, or with any foreign power. But 
the Indian tribes and nations have made treaties with the United States 
during the last forty years, till the whole number of treaties thus made 
far exceeds a hundred, every one of which was ratified by the Senate 
before it became obligatory. Every instance of this kind, implies that 
the Indian communities had governments of their own ; that the Indians, 
thus living in communities, were not subject to the laws of the United 
States ; and that they had rights and interests distinct from the rights 
and interests of the people of the United States, and, in the fullest sense, 
public and national. All this is in accordance with facts ; and the 
whole is implied in the single word treaty. 

Again ; the parties on the banks of the Holston signed a treaty " of 
peace." It is matter of history, that there had been fighting and blood- 
shed. These acts of violence were not denominated a riot, a sedition, a 
rebellion ; they constituted a war. The settlement of the difficulty was 
not called a pardon, an amnesty, a suppression of a riot, a conviction, a 
punishment ; it was called a peace. Nor is it said here, as in the treaty 
of Hopewell, that the United States "give peace." There is, in the 
title and preamble, every indication of perfect equality between the par- 
ties. In point of fact, the whites were, at that moment, much more 
desirous of peace than the Cherokees were. 

This is also a treaty of "friendship which implies, that the Chero- 
kees were not only a substantive power, capable of making peace and 
declaring war, but that, after the treaty was executed, they were ex- 
pected to remain in the same state. It was not a surrendry of their 
national existence, but the establishment of amicable relations to remain ; 



21 

and, so far as this treaty could operate, the amicable relations, thus 
acknowledged to exist, were to continue through all future time. 

Who are the parties to this " treaty of peace and friendship . ? " The 
President acts in behalf of one of the parties, and " the undersigned 
chiefs and warriors of the Cherokee Nation of Indians, on the part and 
behalf of said Nation." The Cherokees then are a nation; and the best 
definition of a nation is, that it is a community living under its own 
laws. 

A nation may be a power of the first, second, third, or tenth rate. It 
may be very feeble, and totally incompetent to defend its own rights. 
But so long as it has distinct rights and interests, and manages its own 
concerns, it is a substantive power ; and should be respected as such. 
Any other rule of interpretation would make force the only arbiter. St. 
Marino, in Italy, is described in our best gazetteers, as " a small but in- 
dependent republic ;" and yet it has not half so many people, nor the 
three hundredth part so much land, as the Cherokee nation now has. 

It has been said, indeed, that the Indians, being an uncivilized people, 
are not to be ranked among nations. But this is said gratuitously, and 
without the least shadow of proof. How many treaties did Julius Caesar 
make with savage tribes, who were greatly inferior, in every intellec- 
tual and moral respect, to the Cherokees of the present day ? There 
is as little reason as truth in the objection. Has not God endowed 
every community with some rights ? and are not these rights to be 
regarded by every honest man, and by every fair-minded and honourable 
ruler ? 

But, above all, the objection comes too late. The United States are, 
as a lawyer would say, estopped. General Washington, with his cabinet 
and the Senate, pronounced the Cherokees to be a nation. It does not 
appear, that a doubt ever crossed the mind of a single individual, for 
nearly forty years, whether this admission were not perfectly correct. 
Presidents Adams, (the elder,) Jefferson, Madison, and Monroe, all ad- 
mitted the Cherokees to be a nation, and treated with them as such. 
The Secretary of War, (now Vice President of the United States,) ne- 
gotiated the last treaty with the Cherokees, and affixed his signature to 
it. In this treaty, as in every preceding one, the Cherokees, are ad- 
mitted to be a nation, and there is not a word in any of these solemn 
instruments, which has the most distant implication of the contrary. If 
the United States are not bound in this case, how is it possible that a 
party should ever be bound by its own admissions ? The truth is, that 
if our country were bound to France, or England, by any stipulation, 
however mortifying to our pride, or disadvantageous to our interest, and 
the meaning of the obnoxious clause were supported by one fiftieth part 
of the evidence by which it can be proved that the United States have 
recognised the national character of the CheroJcees, no lawyer, civilian, 
or politician even, would risk his reputation, by attempting to dispute or 
evade the meaning. We should be obliged to submit to inconveniences 
resulting from our own stipulations, till we could remove them by sub- 
sequent negotiations. If we have been overreached by the Cherokees, 
in so many successive treaties ; if they have had the adroitness to get 
from us repeated acknowledgments of their possessing a character and 
rights, which they did not possess ; if General Washington, and a long 



22 



line of distinguished statesmen, have made incautious admissions ; and 
if, in this way, we have made a bargain which bears hard upon ourselves 
— still, our hands and seals testify against us. We must be more cau- 
tious the next time. '•' He that sweareth to his own hurt, and chansreth 
not," is declared in Holy Writ to give one proof that he is an upright 
man, and will receive the approbation of God. In a word, if Washing- 
ton and Knox, Hamilton and Jefferson, compromitted the interests of 
this country, by indiscreet and thoughtless stipulations, we must gain 
wisdom by experience, and appoint more faithful and more considerate 
public agents hereafter. 

Having inquired into the meaning of the title and preamble of the 
treaty of Holston, let me now direct the attention of the reader to its 
provisions : 

" Art. 1. There shall be perpetual peace and friendship between all the citizens 
of the United States of America, and all the individuals composing the whole 
Cherokee nation of Indians." 

If the " peace and friendship" were to be " perpetual," the future 
continuance of the " Cherokee nation of Indians" for an indefinite 
period, was taken to be a matter beyond all question. It appears from 
this article, as well as from the preamble, that "Indians" may consti- 
tute a " nation." The word tribe, when used to denote a community, 
living under its own laics, is of equal force with the word nation ; and 
in this sense it is to be taken, wherever it occurs, in the course of my 
remarks. But the Cherokee nation had been divided, from time imme- 
morial, into seven clans, sometimes called tribes, and the Choctaw na- 
tion into two such tribes. This fact occasioned some of the peculiar 
phraseology in the treaty of Hopewell. As the seven clans, or tribes, 
of the Cherokees were united under one government, they were all 
comprehended under the phrase of " the whole Cherokee nation of In- 
dians ;" and the word tribe is not found in the treaty of Holston. The 
word nation is applied to the Cherokees, in this single instrument, 
no less than twenty-seven times ; and always in its large and proper 
sense. 

" Art. 2. The undersigned chiefs and warriors, for themselves and all parts of 
the Cherokee nation, do acknowledge themselves and the said Cherokee nation, 
to be under the protection of the United States of America, and of no other sove- 
reign whatsoever; and they also stipulate, that the said Cherokee nation will not 
hold any treaty with any foreign power, individual State, or with individuals of any 
State." 

I remarked upon the treaty of Hopewell, that it has always been a 
common thing for weak states to rely upon the protection of stronger 
ones. When a weak state acknowledges a superior, it is bound in good 
faith, to act in accordance with that acknowledgment ; but it is, in all 
other respects, independent of the superior. In other words, it retains 
all the rights, which it has not surrendered. This is the dictate of com- 
mon sense, and is decisively stated by Vattel. 

What is to be understood by the Cherokees being under the protec- 
tion of the United States, will very fully appear in the course of this 
investigation. In the very article just quoted, the Cherokees bind them- 



23 



selves not to hold any treaty " with any foreign power," nor with any 
44 individual state." This was a very material relinquishment of their 
natural rights ; but it was supposed to be counterbalanced by various 
advantages secured to them by the treaty, particularly by the solemn 
guaranty in the seventh article, which will be considered in its order. 

It is now contended by the politicians of Georgia, that the United 
States had no power to make treaties with Indians " living," as they 
express it, "within the limits of a sovereign and independent State" 
Thus, according to the present doctrine, General Washington and his 
advisers made a solemn compact, which they called a treaty, with cer- 
tain Indians, whom they called the Cherokee nation. In this compact, 
the United States bound the Cherokees not to treat with Georgia. Forty 
years have elapsed without any complaint on the part of Georgia, in re- 
gard to this exercise of the treaty-making power ; but it is now found 
that the Cherokees are tenants at will of Georgia ; that Georgia is the 
only community on earth that could treat with the Cherokees ; and 
that they must now be delivered over to her discretion. The United 
States, then, at the very commencement of our federal government, 
bound the Cherokees, hand and foot, and have held them bound nearly 
forty years, and have thus prevented their making terms with Georgia, 
which might doubtless have been easily done at the time of the treaty 
of Holston. Now it is discovered, forsooth, that the United States had 
no power to bind them at all. 

If such an interpretation is to be endured by an enlightened people in 
the nineteenth century, and if, in consequence of it, the Cherokees are 
to be delivered over, bound and manacled ; if this is to be done in the 
face of day, and before the eyes of all mankind, it must be expected 
that shouts and hisses of shame and opprobrium will be heard in every part 
of the civilized world. Pettifogging is no very honorable business, when 
practised in a twenty shilling court ; but what sort of pettifogging would this 
be ? The Cherokees have fully and honorably fulfilled their engagements. 
They have sold us, at a moderate price, three quarters of their country, 
comprising all the best parts of it. They have submitted to a qualified 
dependence. They have abstained from « holding any treaty with any 
foreign power, or individual state.' And now, when the United States 
are called upon to fulfil their part of the contract, and defend the Chero- 
kees from Georgia, it is gravely proposed to say to these oppressed In- 
dians, " We have no power to defend you. . It is true we promised to 
do it ; and you confided in our promise ; and, in that confidence, made 
valuable concessions to us. But, really, we never had the power to 
make such a promise." 

Has fraud of this barefaced and most disgraceful character been per- 
petrated in the sanctuary of our dignified Senate, and by means of 
solemn treaties ratified in mockery ? the effect of which is to dispossess 
a 44 nation" of its hereditary lands and government, and to drive the in- 
dividuals of which it was composed, (who are called in the preamble 
already cited, "the citizens and members thereof'') — To drive away 
these 44 citizens' 1 '' as outcasts and vagabonds ? 

But such an interpretation, so insulting to the Cherokees and to the 
common sense of mankind, and so cruel in its operation, cannot be 
admitted. Washington was neither a usurper, nor an oppressor ; nor 
were Ellsworth and his fellow senators, either novices or cheats. 



24 



No. VI. 

Treaty of Holston continued — Articles of boundary and session — The nature of a 
session — Grant of a road — Regulation of trade — Articles of guaranty — Impor- 
tance of this article — Nature of a guaranty — Instance of Buonaparte and Swit- 
zerland. 

I proceed in the consideration of the treaty of Holston. The third 
article provides, that " the Cherokee nation shall deliver" up " all per- 
sons who are now prisoners, captured by them from any part of the 
United States ;" and " the United States shall restore to the Cherokees 
all prisoners now in captivity, whom the citizens of the United States 
have captured from them." A period of about nine months was allow- 
ed for a compliance with this article. Here the most entire reciprocity 
exists, precisely as it is found, usually, in treaties of peace between 
European powers. 

" Art. 4. The boundary between the citizens of the United States and the Cher- 
okee nation is and shall be as follows t' 1 [Here the boundary is described, which 
is, in part, the same with that in the treaty of Hopewell ; but the Cherokee coun- 
try on the northeast is considerably curtailed. Here had been the seat of war dur- 
ing the interval between the two treaties. A tract, which is now the central part 
of Tennessee, and which probably contains a population of more than 200,000 
souls, was still retained by the Cherokees.] 

The article provides that the boundary shall be ascertained and marked, and 
then proceeds thus : 

" And, in order to extinguish forever all claims of the Cherokee nation, or any 
part thereof, to any of the land lying to the right of the line above described, be- 
ginning as aforesaid, at the Currahee mountain, it is hereby agreed that, in addi- 
tion to the consideration heretofore made for the said land, the United States will 
cause certain valuable goods to be immediately delivered to the undersigned chiefs 
and warriors, for the use of their nation ; and the said United States will also 
cause the sum of $1,000 to be paid annually to the said Cherokee nation. And the 
undersigned chiefs and warriors do hereby, for themselves and the Cherokee na- 
tion, their heirs and descendants, for the consideration above mentioned, release, 
quit claim, relinquish, and cede all the. land to the right of the line described, and 
beginning as aforesaid." 

One object of the treaty was declared in the preamble to be to " as- 
certain the limits of the Cherokees." In the article just quoted, the 
limits are denned on the north and east ; that is, on those sides where 
the white settlers were approaching the borders of the Cherokee coun- 
try. On the south and west the Cherokees were limited by the country 
of their Creek and Chickasaw neighbors ; so that there would have 
been no propriety in even mentioning the subject here. 

At the close of the article, the Cherokee chiefs, " for themselves and 
the whole Cherokee nation, their heirs and descendants, release, quit 
claim, relinquish, and cede" a certain portion of their country ; that 
very country which had been called " hunting grounds" in the treaty of 
Hopewell, and of which, as it is now pretended, the Cherokees were 
tenants at will. Was it ever before heard, that a tenant at will released 
and ceded land to the rightful owner ? 

The phraseology here used not only implies that the word allotted, in 
the previous treaty, meant no more than that the boundary of the Che- 
rokee country was Jixed or defined, by the article in which it was used : 



25 



but, it implies also, in the strongest manner, that the sovereign power of 
the Cherokees over their territory was unquestionable. The word 
" cede" is the most common and operative word, in all transfers of terri- 
tory from one nation to another. Unless explained and limited, it con- 
veys the right of sovereignty. Thus, in cessions of small portions of 
land to the general government, for navy yards, &c. the several States 
are in the practice of reserving certain rights ; such as the right of en- 
tering to apprehend criminals, &c. implying that the word cede would, 
ex vi termini, convey to the general government all the rights of sover- 
eignty. But no party can convey what it does not possess ; and it would 
have been absurd for the United States to ask and accept a cession, 
without admitting that the Cherokees had power to make one. This 
article expressly declares that the agreement was entered into, the ces- 
sions made, and the compensation given " to extinguish forever all 
claims of the Cherokee nation" to the lands thus ceded. The Chero- 
kees are acknowledged, then, to have had claims, not cancelled by war, 
— not swept away by the superior force of the United States, — never 
before surrendered : claims, which the solemn sanction of treaties was 
deemed necessary to extinguish. 

" Art. 5. It is stipulated and agreed that the citizens and inhabitants of the 
United States shall have a free and unmolested use of a road from Washington 
district to Mero district, and the navigation of the Tennessee river." 

This is another very curious provision, if we are to believe that the 
Cherokees are merely tenants at will, and the people of the United States 
the rightful owners. But upon the only tenable ground, viz. that the 
Cherokees had a perfect title to the soil, with undoubted rights of sover- 
eignty over it, the article is intelligible and reasonable. The people of 
the United States wanted a free passage through a particular part of the 
Cherokee territory ; and, as the parties now sustained amicable relations, 
such a passage was granted by a treaty stipulation. 

Art. 6. It is agreed on the part of the Cherokees, that the United States shall 
have the sole and exclusive right of regulating their trade." 

By the constitution of the United States it had been provided, that 
Congress should have power to regulate commerce " with the Indian 
tribes." This policy had been pursued in the treaty of Hopewell, and 
was doubtless chosen wisely, and with a view to benefit the Indians. 
It was not binding upon them, however, till they voluntarily consented to it. 

"Art. 7. The United States solemnly guaranty to the Cherokee nation all 
their lands not hereby ceded." 

This is the most important article in the treaty. The Cherokees had 
yielded some of their natural rights. They had agreed not to treat with 
any foreign power. They had committed the regulation of their trade 
to the United States. They had admitted the United States to partici- 
pate in the navigation of the Tennessee ; and had granted a free pas- 
sage through a certain part of their country to the citizens of the United 
States. They had ceded a portion of their territory. 

On the other hand, the United States engaged to protect the Chero- 
kees, to promote their civilization, as will hereafter be seen, and espe- 
cially, to guaranty the integrity and inviolability of their territory. In a 
world full of outrage, fraud, and violence, it is a great advantage for a 
weak state to obtain the solemn guaranty of a powerful neighbour, that 
its rights and sovereignty shall be safe. All this is implied by a guaran- 
4 



2(5 



ly. The United States solemnly engaged to preserve and defend the 
Cherokees against all foreign powers, (a colony of Spain being then in 
the neighbourhood,) against the states of Georgia and North Carolina, 
against the United States, in their federative capacity, and against all 
whites who should threaten to commit aggressions upon the Chero- 
kees. 

The word guaranty can mean no less, unless limited by the subject 
or context. If Bonaparte guarantees the integrity of Switzerland, he 
engages to defend and preserve Switzerland from aggression and inva- 
sion, whether the danger arises from Austria, Prussia, Holland, or even 
France itself. It is the chosen and appropriate word to express the 
utmost security, which can be pledged to one party by the power and 
good faith of another. 

Upon the guaranty of the United States the Cherokees have relied, 
with unshaken constancy, since the year 1791. Within a few months 
their confidence has been shaken ; and they are now in a state of great 
solicitude and anxiety. It remains to be seen whether a treaty will 
bind the United States to a weak and dependent ally, or whether force 
is to be the only arbiter in the case. 



No. VII. 

I •■ 

Treaty of Holston continued — Further remarks on the guaranty — Statement of 
parallel cases — Whether the world can be made to receive the modern inter- 
pretation — The Cherokees would never have made a peace without this gua- 
ranty — We urged the Cherokees to a peace, and called them brothers — Ab- 
stract of remaining articles — Delivery and punishment of criminals — Proffered 
aid in civilization. 

In the article of guaranty, which was the subject of discussion in my 
last number, the country of the Cherokee nation is called " their lands 
an expression utterly at variance with the notion that the lands belong- 
ed to the whites. Indeed, the recent interpretation of our compacts 
with the Indians, does great violence to the ordinary rules of language. 
The seventh article is short, and will bear repeating. — It reads thus : 
" The United States SOLEMNLY GUARANTY to the Chero- 
kee Nation ALL THEIR LANDS not hereby ceded.]' This 
seems to be, upon the face of it, a plain sentence. A man of moderate 
information would at least suppose himself to understand it. He would 
not suspect that there was a secret, recondite meaning, altogether in- 
compatible with the apparent one. But it seems that there was such a 
meaning. How it was discovered, or by whom, the public are not in- 
formed. The present Secretary of War, however, has lately adopted 
it, and urged it upon the Cherokees as decisive of the whole question 
at issue. The true meaning of the article, then, as explained by a pub- 
lic functionary thirty eight years after it was made, would have been 
accurately expressed as follows : " The United States solemnly declare, 
that the Cherokee Indians have no right nor title to avy lands within the 



27 



territory of the United States, as fixed by the treaty of 1783 ; but the 
United States permit the Cherokees to remain on the lands of North 
Carolina, South Carolina, and Georgia, [south and west of the above 
described boundary,) until the said states shall take possession of the 
same." 

This is the guaranty of the Cherokee country ! It is certainly the 
interpretation of the Secretary of War. How would other treaties bear 
a similar explanation ? The newspapers tell us, that Russia, Great 
Britain, and France, have engaged to guaranty the territory of Greece 
within certain limits. Does this mean that the Greeks are to be per- 
mitted to live, for the present, on lands which belong to the Turks ; but 
that the Turks, whenever they please, may take possession of their own 
lands, and massacre the Greeks ? 

The Federal Constitution says, (Art. IV. sec. 4,) "The United 
States shall guaranty to every state in this Union, a Republican form 
of government ;" the true meaning of which may hereafter appear to 
be as follows : " The United States shall permit each state to have a 
Republican form of government for the present ; and until a monar- 
chical form of government shall be imposed upon the people thereof." 

The true meaning of an instrument is that which was in the minds 
of the parties, at the time of signing. Can the Secretary of War prove 
•that General Washington understood the treaty of Holston, according 
to the explanation now given ? Can he prove that the Cherokee chiefs 
and warriors understood it in the same manner ? Surely he would not 
have it signed and ratified in one sense, and carried into effect in a to- 
tally different and opposite sense. He must therefore suppose, that 
the Cherokees intended to admit that they had no right to i their own 
lands,' and that they stood ready to remove whenever requested. But 
he must allow, that, if this were the meaning of the parties, it was very 
strangely expressed ; and however sincerely he may entertain the newly 
discovered opinion as to the meaning, he may still find it extremely 
difficult to convince the world that he is right. 

Will the Secretary of War guaranty his country against any loss of 
character, as a consequence of adopting his interpretation ? Whom 
will he get for sponsors and compurgators ? Can he engage that im- 
partial and disinterested men will be satisfied ? And if they will not, 
or if there is danger that they will not, should he not distrust his own 
conclusions ? And may he not have arrived at them without sufficient 
examination ? 

Not to dwell longer on the words of the article, is it credible that the 
Cherokees would have signed a treaty, in the year 1791, if they had 
been plainly told that the United States did not acknowledge them as a 
separate people ; that they had no rights, nor any lands ; that they 
lived upon their ancient hunting grounds by the permission of the 
whites ; and that, whenever the whites required it, they must remove 
beyond the Mississippi ? At that very moment the Cherokees felt 
strong. They and the neighbouring tribes could collect a formidable 
force. They had an illimitable forest in which to range, with many 
parts of which they were perfectly acquainted. They could have driven 
in the white settlers, on a line of more than 500 miles in extent. Many 
a Braddock's field, many a St. Clair's defeat, many a battle of Tippa- 



28 



canoe, would have been witnessed, before they could have been expelled 
from their swamps and their mountains, their open woods and their im- 
pervious cane-brakes, and fairly dislodged from the wide regions on this 
side of the Mississippi. 

The people of the United States wanted a peace. We invited the 
Cherokees to lay down their arms. We spoke kindly to them ; called 
them our brothers, at the beginning of every sentence ; treated them as 
equals ; spoke largely of our future kindness and friendship ; and shall 
we now — I speak to the people of the United States at large — shall we 
now hesitate to acknowledge the full force of the obligations by which 
we bound ourselves ? Having, in the days of our weakness, and at our 
own instance, obtained a peace for our own benefit, shall we now, 
merely because no human power can oppose an array of bayonets, set 
aside the fundamental article, without which no treaty could ever have 
been made ? 

But I must proceed with other parts of the compact. 

Art. 8. If any person, not an Indian, shall settle on any of the Cherokees' 
lands, he shall forfeit the protection of the United States, and the Cherokees may 
punish him. 

Art. 9. No citizen of the United States shall attempt to hunt on the lands of 
the Cherokees ; nor shall any such citizen go into the Cherokee country without 
a passport from the governor of a State, or Territory, or such other person as the" 
President of the United States may authorize to grant the same. 

Art. 10. and 11. Reciprocal engagements, in regard to the delivery and punish- 
ment of criminals. 

Art. 12. No retaliation or reprisal, in case of injury, till after satisfaction shall 
have been demanded and refused. 

Art. 13. The Cherokees to give notice of any hostile designs. 

Art. 14. " That the Cherokee Nation may be led to a greater degree of civili- 
zation, and to become herdsmen and cultivators, instead of remaining in a state 
of hunters, the United States will, from time to time, furnish, gratuitously, the 
said nation with useful implements of husbandry ; and further to assist the said 
nation in so desirable a pursuit, and at the same time to establish a certain mode 
of communication, the United States will send such and so many persons to re- 
side in said nation, as they may judge proper, not exceeding four in number, who 
shall qualify themselves to act as interpreters. These persons shall have lands 
assigned by the Cherokees for cultivation for themselves and their successors in 
office; but they shall be precluded exercising any kind of traffic." 

Art. 15. All animosities to cease, and the treaty to be executed in good faith. 

Art. 16. The treaty to take effect as soon as ratified, by the President of the 
United States, with the advice and consent of the Senate. 

The Treaty was signed, in behalf of the United States, by William 
Blount, governor of the territory south of the Ohio, and by forty-one 
Cherokee chiefs and warriors in behalf of the Cherokee nation ; and 
was afterwards duly ratified by the President and Senate. 

A few remarks seem to be demanded on several of these articles. 
In the ninth, the country of the Cherokees is again called their " lands," 
as it had been twice before ; and the citizens of the United States are 
strictly prohibited from attempting to hunt on said lands ; nor could any 
of our people even enter the country without a passport. 

The tenth article, which is barely mentioned in the preceding abstract, 
provides, that " if any Cherokee Indian, or Indians, or person residing 
among them, or who shall take refuge in their nation, shall steal a horse 



29 



from, or commit a robbery, or murder, or other capital crime on any 
citizens or inhabitants of the United States, the Cherokee nation shall 
be bound to deliver him or them up, to be punished according to the 
laws of the United States." 

Thus it appears, that if a party of Cherokees should commit murder 
in the white settlements, upon citizens of the United States, the murder- 
ers could not be pursued a foot within the Cherokee boundary. Nay 
more, if one of our own people should commit murder, or any other 
capital crime, and should take refuge in the Cherokee nation, he could 
not be pursued, however flagrant the case might be, and however well 
known the criminal. The Cherokees must arrest him in their own way, 
and by their own authority ; and they were bound by this treaty to do, 
what by the laws of nations they would not have been bound to do, that 
is, to deliver up criminals for punishment. Neither the United States, 
nor any particular State, had any jurisdiction over the Cherokee coun- 
try. But the next article, which my argument makes it necessary to 
quote at large, is, if possible, still more decisive of the matter. 

*' Art. 11. If any citizen or inhabitant of the United States, or of either of the 
territorial districts of the United States, shall go into any town, settlement, or 
territory belonging to the Cherokees, and shall there commit any crime upon, or 
trespass against the person or property of any peaceable and friendly Indian or 
Indians, which, if committed within the jurisdiction of any State, or within the ju- 
risdiction of either of the said districts, against a citizen or any white inhabitant 
thereof, would be punishable by the laws of such State or district, such offender or 
offenders shall be subject to the same punishment, and shall be proceeded against 
in the same manner as if the offence had been committed within the jurisdiction of 
the State or district to which he or they may belong, against a citizen or white in- 
habitant thereof." 

If there is any meaning in language, it is here irresistibly implied, that 
the Cherokee country, or " territory" is not " within the jurisdiction of 
any State, or within the jurisdiction of either of the territorial Districts 
of the United States." Within what jurisdiction is it, then ? Doubtless 
within Cherokee jurisdiction ; for this territory is described as " belong- 
ing to the Cherokees ," — one of the most forcible idiomatic expressions of 
our language to designate absolute property. What then becomes of 
the assumption of jurisdiction over the Cherokees by the State of Geor- 
gia ? This question will be easily decided by the man who can tell 
which is the strongest, a treaty of the United States, or an act of the 
Legislature of a State. The treaty says that the Cherokee territory is 
inviolable ; and that even white renegadoes cannot be pursued thither. 
A recent law of Georgia declares the greater part of the Cherokee 
country to be under the jurisdiction of that State ; and that the laws of 
Georgia shall take full effect upon the Cherokees within less than a year 
from the present time. The Constitution of the United States (Art. 
VI.) has these words : " All treaties made under the authority of the 
United States, shall be the supremelaw of the land; and the judges in 
every State shall be bound thereby, any thing in the laws or Constitu- 
tion of any State to the contrary notwithstanding." The question of ju- 
risdiction is, therefore, easily settled. 

But the full acknowledgment of the national rights of the Cherokees, 
and of the sacredness of their territory, is not all that the treaty con- 
tains. The fourteenth article was framed expressly for the purpose of 



30 



preserving and perpetuating the national existence of the Cherokees. 
That they might " be led to a greater degree of civilization" appears to 
have been a favourite design of the American government. With a view 
to this object, and that they might "become herdsmen and cultivators ," 
the United States proffered some important advantages ; and it is by the 
aid of these very advantages, and by the co-operation of faithful teachers 
and missionaries, that the Cherokees have been led to " a greater de- 
gree of civilization" than any c£her tribe of Indians. So undeniable is 
this fact, that Georgia has complained of it ; and the government has 
been blamed for doing those things, which the United States were bound 
to do by the most solemn treaty stipulations. 

In a word, the treaty of Holston is a plain document, having a direct 
object. It is consistent with itself. It does not contain the most distant 
implication, that any portion of the human race, except the Cherokees 
themselves, had even the shadow of a claim upon the Cherokee territory. 
It guarantees that territory to its possessors as their own absolute pro- 
perty ; accepts grants from them ; and engages that the United States 
shall befriend them, in their future efforts for improvement. That the 
Cherokees have never forfeited the benefit of these stipulations will ap- 
pear in subsequent numbers. 



No. VIII. 

Third treaty, 1792 — Fourth treaty, or second treaty of Philadelphia, 1794 — Gua- 
ranty of another Indian treaty — Fifth treaty, or first treaty of* Tellico,1798 — The 
guaranty repeated, and declared to be forever — The construction of former trea- 
ties confirmed — No shadow of evidence on the other side. 

On the 17th of February, 1792, an additional article was signed at 
Philadelphia, by Henry Knox, Secretary of War, for the United States, 
and seven chiefs and warriors in behalf of the Cherokees. As this arti- 
cle was the result of a distinct negotiation, held seven months after the 
execution of the Treaty of Holston, it may with propriety be called the 
third treaty between the United States and the Cherokees. It pro- 
vided that the annuity, given by the fourth article of the next previous 
treaty, should be raised from $1,000 to $1,500 ; and it declared that 
this annual sum was given " in consideration of the relinquishment of 
lands," which had been made in that treaty. Of course, the United 
States admitted, that the Cherokees had possessed lands, on the outside 
of the limits established by the treaty, which lands they had relinquished 
to the United States. This additional article was a confirmation of the 
Treaty of Holston, after ample time had elapsed for consideration : 

FOURTH TREATY WITH THE CHEROKEES. 

This document was executed at Philadelphia, on the 26th of June, 
1794, by Henry Knox for the United States, and thirteen chiefs *for the 
Cherokees. 

After a preamble, which states that the treaty of Holston "had not been fully 
carried into execution by reason of some misunderstanding," and that the part ies 
were " desirous of re-establishing peace and friendship," 



31 



Art. 1st declares, " that the said treaty of Holston is, to all intents and purpo- 
ses, in full force, and binding upon the said parties, as well in respect to the boun- 
daries therein mentioned, as in all other respects whatever-" 

Art. 2d stipulates, that the boundaries shall be ascertained and marked, when- 
ever the Cherokees shall have ninety days' notice. 

Art. 3. " The United States, to evince their justice by amply compensating the 
said Cherokee Nation of Indians for relinquishments of land," made 1 by the treaty 
of Hopewell and the treaty of Holston,' agree to give to the Cherokees, in lieu of 
former annual payments, $5,000 a year in goods. 

Art. 4. The Cherokees agree that $50 shall be deducted from their annuity for 
every horse stolen by any of their people from the neighbouring whites. 

Art. 5. These articles to be permanent additions to the treaty of Holston, as 
soon as ratified. They were soon after ratified by President Washington and the 
Senate. 

It has appeared, in the course of this discussion, that the treaty with 
the Creeks, in 1790, was the basis of the treaty of Holston in 1791. 
This was confirmed in 1792, and again, expressly and solemnly, in 1794, 
Thus we have four distinct documents, which received the approbation 
of General Washington, and his cabinet, all agreeing in the same princi- 
ples, and all ratified by the senate of the United States. Several other 
treaties, in which the same principles were involved, were formed with 
other tribes of Indians, during the same administration. In one of these, 
the United States engage, that they * will never claim the lands reserved 
to the Indians ;' but that the Indians 4 shall have the free use and enjoy- 
ment thereof, until they choose to sell the same to the people of the 
United States.' 

FIFTH TREATY, OR TREATY OF TELLICO. 

This treaty was signed " near Tellico, on Cherokee Ground," Oct. 2, 
1798, by Thomas Butler and George Walton, commissioners of the 
United States, and thirty-nine Cherokee chiefs and warriors, in the pre- 
sence of Silas Dinsmoor, Agent of the United States among the Che- 
rokees, and thirteen other witnesses, among whom was the late Mr. 
Charles Hicks, who acted as interpreter on the occasion. 

The treaty begins with a long preamble, stating the reasons why it was neces- 
sary to make another treaty ; and among the reasons are these two clauses ; viz. 
" for the purpose of doing justice to the Cherokee Nation of Indians ;" and " in or- 
der to promote the interest and safety of the States." 

Art. 1. Peace renewed and declared perpetual. 

Art. 2. The treaties subsisting between the parties in full force ; " together with 
the construction and usage under the respective articles ; and so to continue.'''' 

Art. 3. Limits to remain the same, " where not altered by the present treaty." 

Art. 4. The Cherokee Nation " do hereby relinquish and cede to the United 
States all the lands within the following points and lines :" [Here follows a boun- 
dary, by which a considerable district of land, now in East Tennessee, was ceded 
to the United States.] 

Art. 5. The line described in the treaty to be marked immediately, " which 
said line shall form a part jof the boundary between the United States and the Chero- 
kee Nation" 

Art. 6. In consideration of the preceding cession, the United States agree to 
pay $5,000 on signing, and $1,000 annually, in addition to previous stipulations of 
this kind ; "and will continue the GUARANTY of the remainder of their 
country FOREVER, as made and contained informer treaties." 

Art. 7. A road granted by " the Cherokee nation," across a small corner of 
their country, to the citizens of the United States ; and in consideration of this 
grant, the Cherokees are to be permitted " to hunt and take game upon the lands 



32 



relinquished and ceded by this treaty," until settlements shall make such hunting 
improper. 

Art. 8. Due notice to be given of the payment of the annual stipends, and the 
United States to furnish provisions for a reasonable number of Cherokees, who 
shall assemble on these occasions. 

Art. 9. Horses stolen from Cherokees by whites, to be paid for by the United 
States; and horses stolen from whites by Cherokees, to be paid for by a deduction 
from the annuity. 

Art. 10. The Agent of the United States residing among the Cherokees to 
have a sufficient piece of ground allotted "/or his temporary use." 

Lastly : this treaty to " be carried into effect on both sides with all good faith" 
The treaty was ratified soon after, by President Adams, and the Senate of the 
United States. 

A few remarks on this treaty may not be improper. 
The words cede, nation, and guaranty, are used in the same senses 
here, as in the treaty of Holston, seven years before. During the in- 
terval, the government of the United States had been frequently em- 
ployed in making treaties with various tribes of Indians ; and it is safe 
to say, that in no period of our national history, was the meaning of 
public documents more thoroughly weighed, or the tendency and ulti- 
mate effect of public measures more seriously considered ; and the 
world may be challenged to produce an example of the administration 
of a government over an extensive territory, and over a people in new, 
various, and complicated relations, in which fewer mistakes, either theo- 
retical or practical, were made, than during the administration of 
General Washington. 

The parties were so careful of the inviolability and integrity of the 
Cherokee territory, that the use of a short road, in the northern extre- 
mity of that territory, (now in the State of Kentucky,) at a great dis- 
tance from the actual residence of the Cherokees generally, was made 
the ground of a solemn treaty stipulation, and an equivalent was given 
for it. Nay more, the Agent of the United States, residing among the 
Cherokees to distribute the annual payments, to encourage the natives 
in agriculture and manufactures, and to execute the treaties in other 
respects, could not claim even the temporary use of land for a garden, 
or a cow pasture, till this small convenience was allowed him by treaty. 

The United States not only acknowledge former treaties, and declare 
them to be in full force ; but " the construction and usage under their 
respective articles" are acknowledged, ratified, and declared to be the 
rule of future usage and construction. This is a very remarkable pro- 
vision ; and was doubtless adopted to quiet the Cherokees in regard to 
encroachments feared from the United States. The construction and 
usage, under the previous treaties,. can be proved at this day, by living 
witnesses, and by public archives, to have tended invariably to this 
one point — that the Cherokees were to retain the unimpaired sovereignty 
of their country ; and that to enable them to do this permanently, and 
in the most effectual manner, they were to be taught all the common 
arts of civilized life. To this course they were urged, in the most af- 
fectionate manner, by letters written with General Washington's own 
hand. This was pressed upon them at every council, and habitually in 
private, by the Agent of the United States, in pursuance of written and 
verbal instructions from the head of the War Department. No histori- 
cal facts can be proved with more absolute certainty than these ; and 
there is not, it is believed, even the pretence of any evidence to the con- 
trary. 



33 



It appears, moreover, in the preamble to this treaty of Tellico, that 
the " misunderstandings'''' had arisen, because white settlers had trans- 
gressed the Cherokee boundary, " contrary to the intention of previous 
treaties ;" and that these intruders had been removed by the authority of 
the United States. 

Again : this treaty was negotiated by George Walton, a citizen of 
Georgia, in whom that state reposed great confidence, and by Thomas 
Butler, commanding the troops of the United States, in the state of 
Tennessee ; and it was executed, (to use its own language) " on Chero- 
kee ground." 

Thus, the country of the Cherokees is called, as T have already shown, 
" their lands," their " territory," " their nation," and their " ground," 
These epithets are used, not by careless letter writers, nor in loose de- 
bate ; but in the most solemn instruments, by which nations bind them- 
selves to each other. And what is there on the other side ? Is it said, 
or implied, that the Cherokees had a qualified title ? a lease for a term 
of years ? a right to hunt till Georgia should want the land for growing 
corn or cotton ? the privilege of administering their own laws, till Geor- 
gia should exercise her rightful jurisdiction, as a sovereign and indepen- 
dent State ? Is there any thing that looks this way ? Not a word ; not 
a syllable ; not the most distant hint. While it is asserted in various 
forms, and implied more than a hundred times over, that the Cherokees 
were a nation, capable of treating with other nations ; that they had a 
country, which was acknowledged to be indisputably their own ; that 
they had a government to punish criminals and to deliver up renegadoes ; 
and that they were to become a civilized people, permanently attached 
to the soil ; there is hot, in all these instruments, a single intimation, or 
ground of plausible argument to the contrary. 

Lastly, this treaty not only adopts the word "guaranty" from the 
treaty of Holston, but interprets it, (as every civilian in Europe and 
America would have done,) to be applicable to " the remainder of their 
country FOREVER ;" that is, (for the meaning can be no less,) the 
Cherokees were to retain the clear title and unincumbered possession 
of the remainder of their country, which they previously had of the 
whole ; and such title and possession were guaranteed to them forever, 
by the power and good faith of the United States, 



No. IX. 

Guaranty to the Dela wares, in 1778 — Ingratitude of not giving a fair construction 
to these treaties— Sixth compact with the Cherokees, 1803-— Caution in the 
preservation of their rights— Use of the word Father— Second treaty of Telli- 
co, or seventh compact, 1804 — Third treaty of Tellico, or eighth compact, 1805. 

The idea of a guaranty, and of a country, as a territory belonging to 
Indians, was not new, even at the period of the treaty of Holston. 
The first treaty, which I have been able to find, made with Indians 

■ 5 



34 



by the United States in their confederated character, was executed at 
Fort Pitt, on the 17th of September, 1778. It contains the following 
very remarkable article : 

" Art. 6. Whereas the enemies of the United States have endeavoured, by eve- 
ry artifice in their power, to possess the Indians in general with the opinion that it 
is the design of the States aforesaid to extirpate the Indians, and take possession 
of their country; — to obviate such false suggestion, the United States do engage 
to guaranty to the aforesaid nation of Delawares and their heirs, all their territori- 
al rights in the fullest and most ample manner, as it hath been bounded by for- 
mer treaties, as long as they, the said Delaware nation, shall abide by, and hold 
fast, the chain of friendship now entered into. And it is further agreed on, be- 
tween the contracting parties (should it for the future be found conducive to the 
mutual interest of both parties) to invite any other tribes, who have been friends 
to the interest of the United States, to join the present confederation, and to form 
a State, whereof the Delavmre nation shall be the head and have a representation in 
Congress ; provided nothing contained in this article to be considered as conclu- 
sive, until it meets with the approbation of Congress." [That it did meet with 
the approbation of Congress is manifest ; because it is now part of a national 
treaty.] 

The bare suggestion that the United States designed to take posses' 
sion of the Indian country was treated as a slander and a calumny. 
The territorial rights of the Indians were to be respected, and the In- 
dian tribes generally were encouraged with the proposal that they might 
be represented in Congress. The natural implication of this last pro- 
posal must have been, that the Indians not only had territorial rights, 
but might expect to retain them permanently, in the same manner as the 
State of Virginia, or Connecticut, and the other confederated republics, 
expected to retain their territorial rights. 

Let it be remembered, that this treaty was made when the United 
States were struggling for independence against the whole force of the 
British empire, and when every accession of strength to the American 
cause, and every subtraction from the power of the enemy, was a mat- 
ter of great importance. Nor should it be forgotten, that other treaties 
formed with the Indians, after the peace of Great Britain were extremely 
desirable to the United States ; that the exhausted treasury of the na- 
tion could ill afford the expense of Indian wars ; that the Indians had 
the undisputed possession of boundless forests, on all our frontiers ; 
that many of them had endured public and private injuries, which were 
unavenged and uncompensated ; that the Indian tribes were strong, 
compared with their subsequent decline and their present total want of 
power ; and that the United States were weak, compared with their pre- 
sent gigantic strength. 

Though the treaties were formed in such circumstances, not a single 
article bore hardly, or oppressively, on the United States, or on the new 
settlers. The Indians claimed nothing unjust or unreasonable. The 
early negotiations wear the aspect of mutual benefit, and appear to have 
been concluded with a desire to secure permanent peace to the parties, 
founded on the acknowledgment of their mutual rights. 

Are the people of the United States unwilling to give a fair, candid, 
and natural construction to a treaty thus made ? I might say, Are they 
unwilling to give it the only construction of which it is capable ? Are 
they unwilling to admit a meaning which stands out prominently upon 
'the very face of the transaction, and which no ingenuity can distort, 
pervert, or evade ? Will they refuse to be bound by the plainest and 



35 



most solemn engagements, deliberately formed, ratified, acted upon, 
confirmed, ratified again and again by the highest authority of our re- 
public ? How can it for a moment be apprehended, that the co-ordinate 
branches of our Government — our high, legislative, executive, and ju- 
dicial functionaries, will manifest so total a disregard of every principle 
of public morality ? 

SIXTH COMPACT WITH THE CHEROKEES. 

This instrument was executed on the 20th of October, 1803, by Re- 
turn J. Meigs, Agent of the United States among the Cherokees, and 
by fourteen Cherokee chiefs, beginning with Black Fox, the principal 
chief, and ending with the famous James Vann. It was witnessed by 
five officers of the United States' Army, and three other persons, one of 
whom was Charles Hicks, then acting as interpreter. I have called it 
a compact, not a treaty, because it was not sent to the Senate for ratifi- 
cation. But though it be not technically a treaty, it is morally binding 
upon the United States ; for it has been carried into effect, and the 
United States, particularly the people of Tennessee and Georgia, have 
derived great benefit from it. I have an accurate copy before me. 

" Articles of agreement between the United States and the Cherokee nation, 
for opening a road from the state of Tennessee to the State of Georgia, through 
the Cherokee nation. 

" The Cherokee nation having taken into consideration the request of their 
Father, the President of the United States, to grant that a road may be opened 
through the nation, from the State of Tennessee to the State of Georgia, and be- 
ing desirous to evince to their Father, the President, and the good people of the 
United States, their good will and friendly disposition, do hereby agree, that a 
road may be opened from the State of Tennessee to the State of Georgia, with 
the reservations and provisions, as in the following articles are expressed ; and 
further to evince to our Father, the President, that we are not influenced by pe- 
cuniary motives, we make a present of the road to the United States." 

Art. 1. A road granted, sixty feet in width, passing through about 150 miles of 
Cherokee territory, and opening a communication from Augusta, Georgia, to 
Knoxville and Nashville, Tennessee. [This has usually been called the Federal 
Road. It has been much travelled ; and great quantities of merchandise, and 
other valuable property, have been transported over it.] It was to be made solely 
at the expense of the United States. The article also provides, that when the 
road is opened, the direction of it shall not be changed ; and that no branch or 
branches (except one which had been described) " shall ever be permitted to be 
opened without the consent of the Cherokee nation." 

Art. 2. The Cherokees reserve to themselves the income of the ferries ; and 
specify where the ferries shall be kept. 

Art. 3. Various regulations respecting houses of entertainment, which the 
Cherokees were to establish ; keeping the road in repair, &c. &c. 

Art. 4. No neat cattle from the southern States shall be driven through the 
Cherokee nation ; and when horses are taken through, the number of them shall 
be inserted in the passport of the owner. The Cherokees not to be answerable 
for estrays from among the animals of the whites. 

Art. 5. Officers, civil and military, mail carriers, and some other classes, ex- 
empted from toll and ferriage. 

Art. 6. Commissioners to be appointed on each side to survey and mark the 
road. 

Art. 7. One copy of this agreement to be sent to the Secretary of War, an- 
other to be left with the principal Cherokee Chief, and a third with the Agent of 
the United States among the Cherokees. 



36 



The road was opened the following year, and has now been travelled 
for a quarter of a century ; and, during this whole time, has greatly 
facilitated intercourse between different parts of the southern states. 

No reader of the foregoing abstract can be so dull as not to perceive, 
that the privilege was granted to the United States, at the special in- 
stance of the President; that the Cherokees were extremely cautious 
not to compromit their territorial rights ; that they made the grant from 
motives of friendship, and a willingness to afford the desired accommo- 
dation. They guard, in a suitable manner, against vexations and lia- 
bilities, to which this act of kindness might be thought to expose them ; 
and they reserve the income of the ferries, some of which are over con- 
siderable rivers, and have been quite profitable. 

The word ' Father' is repeatedly used in this document, to indicate 
the relation which the President of the United States held to the Chero- 
kees, as their protector from aggression, and as bound to see that the 
treaties with them are carried into effect "with all good faith." We 
had obtruded the word upon them. We had put it into their mouths, 
and it was made the standing pledge, not merely of our justice, but of 
our kindness and generosity towards them. Shall this sacred and vene- 
rable name be prostituted to purposes of injustice and oppression ? For 
most assuredly, it will be deemed oppression, rank oppression, if we dis- 
own our engagements, forswear our most solemn covenants, and then 
take possession of the lands of our poor neighbours, which had been se- 
cured to them by the highest guaranty which we could make. Nor 
will the oppression be less odious on account of its being accompanied 
by professions of great benevolence, and the promise of a new guaranty. 

SECOND TREATY OF TELLTCO, OR SEVENTH NATIONAL COM- 
PACT WITH THE CHEROKEES. 

This instrument was executed " in the garrison of Tellico, on Chero- 
kee ground, "'October 24, 1804, by Daniel Smith and Return J. Meigs, 
for the United States, and ten chiefs and warriors for the Cherokees, in 
the presence of five witnesses. 

The preamble says, that certain propositions were made by the Com- 
missioners ; that they were considered by the Chiefs ; and that " the 
parties aforesaid have unanimously agreed and stipulated, as is definitely 
expressed in the following articles :" 

Art. 1. 14 For the considerations hereinafter expressed, the Cherokee nation re- 
linquish and cede to the United States, a tract of land, bounding," &c [This 
was a small tract, called Warlord's Settlement, containing perhaps not more than 
100,000 acres. It was a strip on the frontier between the Cherokees and Georgia.] 

Art. 2. w In consideration of the relinquishment and cession, the United States, 
upon signing the present treaty," shall pay the Cherokees $5,000. in goods or 
money, at the option of the Cherokees, and $1,000 annually, in addition to the 
previous annuities. 

The treaty was ratified by President Jefferson and the Senate. The 
" relinquishment and cession" are of the same nature, and carry with 
them the same implications, as have been described in preceding com- 
ments. 



37 



THIRD TREATY OF TELLICO, OR EIGHTH COMPACT WITH THE 

CHEROKEES. 

This treaty was executed October 25, 1805, by two Commissioners 
of the United States, and thirty-three Cherokee chiefs and warriors, in 
the presence of ten witnesses. 

Art. 1. " Former treaties recognised and continued in force. 

Art. 2. " The Cherokees quit claim and cede to the United States, all the land 
which they [the Cherokees] have heretofore claimed, lying to the north of the 
following boundary line :" [The lands here ceded were of great value, and fell 
into the State of Tennessee, extending east and west, near the central parts of that 
State.] 

Art. 3. " In consideration of the above cession and relinquishment, the United 
States agree to pay immediately," $14,000, and $3,000 a year, in addition to pre- 
vious annuities. 

Art. 4. The citizens of the United States to have the free and unmolested use 
of two roads, in addition to those previously established ; one leading from Ten- 
nessee to Georgia, and the other from Tennessee to the settlements on the Tom- 
bigbee. These roads to be marked out by men appointed on each side for the 
purpose. 

Art. 5. This treaty to take effect, " as soon as it is ratified by the President of 
the United States, by and with the advice and consent of the Senate of the same." 

The treaty was ratified by President Jefferson and the Senate. It will 
be observed, that the first article contains an express recognition of pre- 
vious treaties, and pledges the faith of the United States anew for the 
fulfilment of those treaties. 

Several documents of this kind remain to be considered ; but I engage 
myself to you, Messrs. Editors, and to your readers, that I will be as 
brief as possible, consistent with fidelity to the cause. This is a serious 
matter to the Indians and to the people of the United States. It is a 
matter which must be decided by the great body of the people, through 
their Representatives in Congress. The people must therefore have the 
means of understanding the subject. 



No. X. 

Fourth treaty of Tellico, or ninth compact, 1805 — Proceedings of the State of 
Tennessee — First treaty of Washington, or tenth compact, 1806 — Settlement of 
the Chickasaw boundary — Treaty of Chickasaw Old Fields, or eleventh com- 
pact, 1807 — Second treaty of Washington, or twelfth compact, 1816 — Proceed- 
ings of South Carolina. 

I would content myself with saying, in reference to the remaining 
treaties, that they are perfectly consistent with the preceding ones, were 
it not, that this sweeping declaration would by no means do justice to 
the cause of the Indians. Several of these treaties contain new and 
striking illustrations of the doctrine that the Cherokees were understood 
to possess their country in full sovereignty. 

FOURTH TREATY OF TELLTCO, OR NINTH NATIONAL COMPACT 
WITH THE CHEROKEES. 

This treaty was executed October 27, 1805, at the same place, as the 



38 



one next preceding, and only two days afterwards. It was signed by the 

same commissioners and fourteen of the same Cherokee chiefs. 
The occasion of it is sufficiently explained in the first article : 

Art. 1. "Whereas it has been represented by the one party to the other, that 
the section of land on which the garrison of Southwest Point stands, and which 
extends to Kingston, is likely to be a desirable place for the Assembly of the 
State of Tennessee to convene at, (a committee from that body, now in session, hav- 
ing viewed the situation,) now, the Cherokees, being possessed of a spirit of conci- 
liation, and seeing that this tract is desired for public purposes, and not for indi- 
vidual advantages, reserving the ferries to themselves, quit claim and cede to the 
United States the said section of land, understanding, at the same time, that the 
buildings erected by the public are to belong to the public, as well as the occupa- 
tion of the same during the pleasure of the Government. We also cede to the 
United States the first Island in the Tennessee above the mouth of the Clinch." 

Art. 2. The Cherokees grant a mail road to the United States, from TeJlico to 
the Tombigbee, " to be laid out by viewers appointed on both sides." 

Art. 3. " In consideration of the above cession and relinquishment, the United 
States agree to pay to the said Cherokee Indians, $1,600." 

Art. 4. The treat}" to be obligatory when ratified. 

Within a year or two past, as I have already said, the politicians of 
Georgia have contended, that the national government has no authority 
to make treaties with Indians living, as they describe the matter, " within 
the limits of a sovereign and independent State." The fact is, that the 
national government is the only competent authority, under the federal 
constitution, to enter into any engagements with the Indian tribes, which 
yet retain their organization as separate communities, and are acknow- 
ledged to possess a title to land within definite limits. The uniform 
practice of the government has accorded with these principles; and 
Georgia herself has, until very lately, been urging Congress and the 
Executive to hold treaties with the Cherokees. 

How did the State of Tennessee understand this subject? Let the 
first article of the preceding treaty answer. The legislature of Tennes- 
see, desirous of obtaining a site for the erection of buildings to accom- 
modate their state government, sent a committee to view the point, at 
the junction of two beautiful rivers, the Tennessee and the Clinch. The 
boundary, as it then stood, ran very near this point ; and the State so- 
licited a square mile for the public object above described. The Chero- 
rokees, out of a spirit of conciliation, and for $1,600 in money, ceded 
the section of land with these remarkable reservations, viz. that they 
were to retain the ferries at the seat of government of Tennessee ; and 
that the grant was made for public objects only. Of course, the land 
would revert to the Cherokees, if the seat of government should be re- 
moved. As the legislature afterwards fixed the seat of government far- 
ther west, no public buildings were erected at this place. Narrower 
boundaries were subsequently established between the United States and 
the Cherokees ; but the ferries were held for a long time, if they are not 
now held, by assignees of the Cherokees. The treaty was ratified by 
President Jefferson and the Senate. 

This whole transaction strongly illustrates several important positions, 
which have been taken, or implied, in the preceding discussion ; such as 
the inviolability of the Cherokee territory ; the right of the Cherokees 
to make or withhold cessions of land, according to their pleasure ; 
their right to impose such restrictions upon their grants as they pleased ; 



39 



and the treaty-making power of the United States being the only me- 
dium by which a State can get a proper title to Indian territory. 

TREATY OF WASHINGTON OR TENTH COMPACT WITH THE 
CHEROKEES. 

This treaty was negotiated at Washington, January- 7, 1806, by Hen- 
ry Dearborn, Secretary of W ar, and seventeen Cherokee chiefs and 
warriors. 

The object appears to have been to adjust certain claims of the Che- 
rokees and Chickasaws to the same lands, lying between the Tennessee 
river and Duck river, in what is now West Tennessee. This was 
done by obtaining a relinquishment to the United States of " all the 
right, title, interest and claim, which the Cherokees, or their nation, 
have, or ever had," to the tract described, except that two reservations 
of small portions of this tract are made by the Cherokees. 

The United States give 10,000 dollars, and certain privileges, in 
consideration of the above relinquishment. 

The United States also agree to use their influence to have a certain 
boundary established between the Cherokees and Chickasaws, on the 
south side of the Tennessee river ; "but it is understood by the con- 
tracting parties, that the United States do not engage to have the afore- 
said line or boundary established, but only to endeavour to prevail on 
the Chickasaw nation to consent to such a line, as the boundary between 
the two nations." 

Here it is implied, in the strongest manner, that the United States 
had no right to encroach upon Indian territory, or to fix boundaries 
between neighbouring tribes ; and that these tribes had, as separate na- 
tions, the unquestioned power to settle their own boundaries. 

The government of the United States was willing, however, to act 
the part of a mediator in the adjustment of the boundaries. — Ratified 
by Mr. Jefferson and the Senate. 

TREATY OF CHICKASAW OLD FIELDS ; OR ELEVENTH COMPACT 
WITH THE CHEROKEES. 

This treaty was executed by Return J. Meigs and James Robertson, on 
the one part, and five Cherokee chiefs on the other, September 1 1, 1807. 

It was made to ' elucidate' the next preceding treaty, or to ascertain 
the real intention as to the boundary. The Cherokees were to receive 
$2,000 for * their readiness to place the limits of the land ceded out of 
all doubt and it was stipulated that " the Cherokee hunters, as hath 
been the custom in such cases, may hunt on such ceded tract, until by 
the fulness of settlers, it shall become improper." 

This is the second instance, in which a privilege to hunt on ceded 
lands is granted ; that is, the Cherokees were allowed to exercise the 
same rights of ownership, over land which they had quit claimed and 
sold, and for which they had been paid, as, (if we are to believe the 
present Secretary of War,) they could ever exercise over any of their 
lands, which had not been ceded. I am willing to presume, however, 
that the Secretary of War, after mature deliberation, will abandon a 
position so utterly untenable. 

This treaty was ratified by Mr. Jefferson in the usual manner. 



40 



SECOND TREATY OF WASHINGTON; OR TWELTH COMPACT 
WITH THE CHEROKEES. 

The sole object of this treaty was to obtain for South Carolina a small 
portion of mountainous country, lying at the northwest point of that 
state. It was executed by George Graham, commissioner of the United 
States, and six Cherokee Chiefs, March 22, 1816. 

Art. 1. " Whereas the executive of South Carolina has made an application to 
the President of the United States to extinquish the claim of the Cherokee nation 
to that part of their lands, which lie within the boundaries of the said state, as 
lately established and agreed upon, between that state and the state of North Ca- 
rolina ; and as the Cherokee nation is disposed to comply with the wishes of their 
brothers of South Carolina, they have agreed, and do hereby agree to cede to the 
State of South Carolina, and forever quit claim to the tract of country contained 
within the following bounds :" [Here the bounds are described, comprising a 
tract now in the N. W. cornet of South Carolina. The tract was of small extent 
and very little value, as it is among the mountains.] 

Art. 2. The United States agree, that the State of South Carolina shall pay 
the Cherokees $5,000 for this grant, in ninety days : " Provided, That the Chero- 
kee nation shall have sanctioned the same in Council ; and provided also, that the 
Executive of the State of South Carolina shall approve of the stipulations contain- 
ed in this article." 

This treaty was ratified by the parties ; viz. President Madison and 
the Senate, and the Cherokee nation in council assembled ; and it was 
doubtless approved by the governor of South Carolina. 

Here is another perfect illustration of the manner in which the several 
states obtained a title to lands, which had remained the property of In- 
dians : though the lands appeared, according to the maps, to belong to 
those states. White men, not Indians, made the maps. The northwest 
corner of South Carolina, as that state appeared on the map, still be- 
longed to the Cherokee Indians. The state wished to obtain possession 
of this little fraction of mountainous territory. In a manner perfectly 
fair and honourable, she applied to the general government, requesting 
that the territory might be purchased of the rightful owners. She does 
not say, that the land belongs to her ; but simply that North Carolina 
has agreed with South Carolina, as to the boundary between them, when 
the land shall have been obtained of the Cherokees. She does not pre- 
tend that the Cherokees are bound, or that their rights are in any de- 
gree affected, by agreements between third parties. This is a correct 
view of the subject ; and quite as applicable to Georgia, as to South 
Carolina, or any other state. 



No. XI. 

Third treaty of Washington, or thirteenth compact, 1816 — Claim of the Chero- 
kees previously recognized — The right to navigate rivers in the Cherokee nation 
obtained by treaty — Treaty of the Chickasaw Council House, or fourteenth 
compact, 1816 — Preface, or title of the treaty — Reasons for the treaty — Ab- 
stract of it — Remarks upon it. 

There are four remaining treaties to be examined. Two of them 



41 



were negotiated by the distinguished general, who is now the Chief 
Magistrate of the United States, and one by the distinguished Secretary 
of War, who is now Vice President of the United States. On these 
accounts, as well as from their inherent importance, they are worthy of 
particular attention. 

THIRD TREATY OF WASHINGTON ; OR THIRTEENTH NATIONAL 
COMPACT WITH THE CHEROKEES. 

This treaty was executed on the same day with the one next preced- 
ing ; viz. March 22, 1816, and signed by George Graham for the Unit- 
ed States, and six Cherokee chiefs, for the Cherokee nation. Being on 
a different subject entirely, it was embodied in a separate document. 

Art. 1. The boundary between those parts of the Creek and Cherokee nations, 
which were west of the Coosa river, is agreed upon. The United States, having 
obtained, by treaty, the Creek lands west of the Coosa and contiguous to the Che- 
rokees, it became necessary to ascertain and establish the true boundary between 
these nations. In the body of the article it is said, that in the treaty of January, 
1806, (already described as the tenth compact^ " the United States, have recogniz- 
ed a claim on the part of the Cherokee nation to the lands south of the Big Bend, 1 ' 
&c. 

Art. 2. " It is expressly agreed, on the part of the Cherokee nation, that the 
United States, shall have the right to lay off, open, and have the free use of such 
road, or roads," as shall be needed to open a communication through the Chero- 
kee country north of the boundary now fixed. The United States freely to navi- 
gate all the rivers and waters " within the Cherokee nation." 

Art. 3. " In order to preclude any dispute hereafter, relative to the boundary 
line now established, it is hereby agreed, that the Cherokee nation shall appoint 
two commissioners to accompany the commissioners, already oppointed on the part 
of the United States, to run the boundary," &c 

Art. 4. In order to avoid delay, when the President of the United States shall 
wish, at any time hereafter, to open a new road, under the grant of the second 
article of this treaty, " the principal chief of the Cherokee nation shall appoint one 
commissioner to accompany the commissioners appointed by the President" to 
lay off the road. 

Art. 5. The United States agree to pay $25,500 to " individuals of the Chero- 
kee nation," an an indemnity for losses sustained by them, from the march of the 
United States troops " through that nation" 

The treaty was duly ratified by President Madison and the Senate. 

A very few remarks on this document will be sufficient. 

The first article says, that the United States, in a treaty made ten 
years before, recognized a claim of the Cherokee nation to land south 
of the Big Bend of the Tennessee. What claim ? Doubtless such 
claim as the Cherokees made. But they never made any partial, lim- 
ited, or qualified claim to their lands. They never set up a title as 
tenants for the lives of the existing generation, or tenants for years, or 
tenants at will. They simply, and always, claimed the land as their 
own ; and this claim the United States must have recognized, if they 
recognized any claim at all. 

The fact was, that the article here referred to, as containing a recog- 
nition of the Cherokee claim, was the one, by which the United States 
engaged to prevail on the Chickasaws to agree upon a certain boundary 
between them and the Cherokees. Thus, the friendly attempt to fix a 
boundary between these two Indian nations, was justly construed, in a 
6 



42 



treaty ten years afterwards, to be a recognition of the claims of those 
nations, to the lands on each side of the boundary. 

By article second it is agreed, on the part of the Cherokee nation, 
that the United States shall have the right to lay off roads, in a certain 
part of the nation, and in a prescribed manner. Of course, it must be 
inferred, that the United States had not this right before ; that the as- 
sent of the Cherokee nation was necessary to invest the United States 
with the right ; and that it must, even when expressly granted, be ex- 
ercised in the manner, which the treaty prescribed. This article speaks, 
also, of rivers and waters, "within the Cherokee nation;" and stipulates, 
that the citizens of the United States may freely navigate these waters. 
On looking at the map of the Cherokee country, as it then existed, the 
reader will find, that beside the Hiwassee, the Oostanawlee, the Coosa, 
and many smaller streams, that noble river, the Tennessee, took a sweep 
of more than 150 miles through the Cherokee nation. There was good 
reason to wish for the privilege of navigating these waters ; but how 
absurd to resort to the treaty-making power for the purpose of obtain- 
ing it, if the country really belonged to Georgia and the neighbouring 
states. 

By articles 3d and 4th, it appears, that the Cherokee nation had a 
government, which the United States acknowledged, as being always in 
existence, and always competent to transact any national business. 

TREATY OF THE CHICKASAW COUNCIL HOUSE ; OR FOUR- 
TEENTH COMPACT WITH THE CHEROKEES. 

This document was signed on the 14th of September, 1816. The 
preface is important, and I must cite it at length. 

" To perpetuate peace and friendship between the United States and the Cher- 
okee tribe or nation of Indians, and to remove all future causes of dissension 
which may arise from indefinite territorial boundaries, the President of the United 
States of America, by major-general Andrew Jackson, general David Meriwether, 
and Jesse Franklin, esquires, commissioners plenipotentiary on the one part, and 
the Cherokee delegates on the other, covenant and agree to the following articles 
and conditions, which, when approved by the Cherokee nation, and constitution- 
ally ratified by the government of the United States, shall be binding on all par- 
ties." 

It is always to be presumed, that the President of the United States 
will give a fair and natural construction to all public engagements made 
by the proper authority. There are special reasons, why the present 
incumbent of that high office should respect the document I am now 
considering, and a similar one, which was executed the following year. 

The reasons for the treaty, assigned in the preface above quoted, are 
good and sufficient reasons ; and such as commend themselves to every 
man's heart and conscience. " To perpetuate peace and friendship" be- 
tween neighbouring communities is a benevolent work, the importance 
of which much depends on the durability of the relation, to which such 
phraseology is applied ; and to remove all future causes of dissension, 
which may arise from " indefinite territorial boundaries" is a work 
scarcely less benevolent than the other. This is the very language, 
which would be used on a similar subject, by Russia and Prussia, or 
any two contiguous nations in Europe. 



43 



Further, it appears by the very preface, as well as by the subsequent 
proceedings, that this -treaty, though made in the immediate neighbour- 
hood of the Cherokee country, and signed by fifteen chiefs, was not 
considered as binding, till it should be " approved by the Cherokee na- 
tion." When this should have been done, and the treaty should have 
been ratified by the government of the United States, it would be " bind- 
ing on all 'parties.'''' 

It is humiliating to be obliged to prove, that parties to a treaty are 
bound by it. To pretend the contrary is an utter perversion of reason 
and common sense. There are persons, however, to whom express 
covenants seem stronger than unavoidable implications. Such persons 
are requested to observe, that major general Andrew Jackson and his 
colleagues did expressly, in so many words, "covenant and agree" that 
the treaty should " be binding on all parties." Why is it not binding 
then ? Where is the promised perpetual peace, if the weaker party is 
to be outlawed ? Where is the benefit of definite territorial boundaries, 
if these boundaries are not respected ? 

The following is a brief abstract of the treaty : 

Art. 1. ' Peace and friendship established.' 

Art. 2. The western boundary described. It curtailed the Cherokee country 
on the southwest, and gave to the United States a tract of land, now in the State 
of Alabama. 

Art. 3. The Cherokees relinquish and cede the land just mentioned, and, in 
consideration thereof, the United States agree to pay $5,000 in 60 days, and $6,000 
a year, for ten successive years. 

Art. 4. The line to be plainly marked. 

Art. 5. The Cherokee nation to meet the commissioners of the United States 
at Turkey-town, on the 28th of the same month, " there and then to express their 
approbation, or not, of the articles of this treaty ;" but, if the nation did not assem- 
ble, it would be considered " as a tacit ratification." 

On this treaty I would observe, that there are several things in it 
worthy of special commendation ; viz : the solicitude to avoid future 
difficulties, the uncommon care manifest in article fourth, (which a re- 
gard to brevity prevented my citing at large,) to have the line of terri- 
tory made plain ; and the repeated and explicit acknowledgment, that 
the Cherokees were to express their approbation of the treaty, before it 
would be binding. Of course, they were to be dealt with as intelligent 
and moral beings, having rights of their own, and capable of judging in 
regard to the preservation of those rights. 

It must be presumed, that the commissioners of the United States 
were at Turkey-town, on the 28th of September, the day appointed for 
the ratification ; but whether the Cherokees were dilatory in assem- 
bling, or whether strong arguments were necessary to obtain their con- 
sent, does not appear. Six days afterwards the transaction was closed, 
as is proved by the following certificate : 

" Ratified at Turkey-town by the whole Cherokee nation in council assembled. 
In testimony whereof, the subscribing commissioners of the United States, and the 
undersigned chiefs and warriors of the Cherokee nation, have hereto set their 
hands and seals, this fourth day of October, in the year of our Lord one thousand 
eight hundred and sixteen." 

Signed, ANDREW JACKSON, 

D. MERIWETHER, and 
nine Cherokee chiefs, in the presence of the venerable Col. Meigs, two interpre- 
ters, and Major Gadsden of the United States army, who subscribed as witnesses. 

The treaty was ratified by President Madison and the Senate. 



44 



I close this number by requesting all our public men to meditate upon 
the following words of a very sagacious king : — Remove not the old 
land mark ; and enter not into the fields of the fatherless ; that is, of 
the weak and defenceless ; for their Redeemer is mighty ; He shall 
plead their cause with thee. 



No. XII. 

Treaty of the Cherokee Agency, or fifteenth compact, 1817 — Title of the treaty 
— Long and curious preamble — Abstract of the treaty — Remarks upon it — Sin- 
gular arrangement of Providence — Consideration of Mr. Jefferson's letter — The 
United States to be bound by fear alone — The Cherokees relied on these pro- 
mises. 

The next treaty is unique in its character ; but all its provisions are 
in accordance with the principles of preceding compacts. It forcibly 
illustrates the change, in the condition and prospects of the Cherokees, 
which had then commenced, and has been constantly increasing. 

TREATY OF THE CHEROKEE AGENCY, OR FIFTEENTH COMPACT 
WITH THE CHEROKEES. 

TITLE. 

" Articles of a treaty concluded at the Cherokee Agency within the Cherokee 
nation between major general Andrew Jackson, Joseph McMinn, governor of the 
State of Tennessee, and general David Meriwether, commissioners plenipotentiary 
of the United States of America of the one part, and the chiefs, head men, and 
warriors of the Cherokee nation, east of the Mississippi river, and the chiefs, head 
men, and warriors of the Cherokees on the Arkansas river, and their deputies, 
John D. Chisholm and James Rodgers, duly authorized by the chiefs of the Che- 
rokees on the Arkansas river, in open council, by written power of attorney, duly 
signed and executed in presence of Joseph Sevier and William Ware." 

Here surely are parties, commissioners, and agents enough to make 
a treaty ; but the preamble, occupying an octavo page and a half, is 
still more remarkable. It declares, that in the year 1808, a deputation 
from the Upper and Lower Cherokee towns went to Washington : that 
the deputies from the Upper Towns signified to the President " their 
anxious desire to engage in the pursuit of agriculture and civilized life, 
in the country they then occupied ;" that the nation at large did not par- 
take of this desire ; that the upper towns wished, therefore, for a division 
of the country, and the assignment to them of the lands on the Hiwas- 
see ; that, " by thus contracting their society within narrow limits, they 
proposed to begin the establishment of fixed laws, and a regular govern- 
ment ; that the deputies from the -lower towns wished to pursue the 
hunter life, and with this view to remove across the Mississippi ; that the 
President of the United States, " after maturely considering the petitions 
of both parties," wrote to them on the 9th of January, 1809, as fol- 
lows : " The United States, my children, are the friends of both par- 
ties ; and, as far as can be reasonably asked, they are willing to satisfy 
the wishes of both. Those who remain may be assured of our patron- 
age, our aid, and good neighbourhood. Those who wish to remove, are 
permitted to send an exploring party to reconnoitre," &c. That in the 



45 



same letter, the President added—" When the party shall have found a 
tract of country suiting the emigrants, and not claimed by other Indians, 
we will arrange with them and you the exchange of that for a just por- 
tion of the country they leave, and to a part of which, proportioned to 
their numbers, they have a right;" and that in conclusion, he told the 
emigrating Cherokees, that the United States would "still consider 
them as our children," and " always hold them firmly by the hand" 

The preamble states further, that, " the Cherokees relying on the 
promises of the President of the United States, as above recited," ex- 
plored the country west of the Mississippi, made choice of land to which 
no other Indians had a just claim, and were desirous of completing the 
proposed exchange of country. 

" Now, know ye," concludes the preamble, " that the contracting par- 
ties, to carry into full effect the before recited promises with good faith, 
and to promote a continuation of friendship," &c. &c. " have agreed 
and concluded on the following articles :" 

Art. 1. " The chiefs, head men, and warriors, of the whole Cherokee nation, 
cede to the United States all the lands lying north and east of the following 
boundaries :" [The line here described left out a tract of land, which fell into 
Georgia.] 

Art. 2. The Cherokees also cede certain valuable lands, which fall into the 
central parts of Tennessee. 

Art. 3. A census to be taken with a view to ascertain the number of emigrants ; 
that is, the number of Cherokees who wish to remove across the Mississippi. 

Art. 4. The annuities to be divided between the remaining and the emigrating 
Cherokees, in proportion to their numbers respectively. 

Art. 5. In consideration of the lands ceded in the first and second articles of 
this treaty, the United States engage to give an equal quantity of land, acre for 
acre, between the Arkansas and White rivers, within certain boundaries mentioned. 

This article closes with the following words: " And it is further stipulated, that 
the treaties heretofore between the Cherokee nation and the United States are to 
continue in full force with both parts of the nation ; and both parts thereof are en- 
titled to all the immunities and privileges which the old nation enjoyed, under the 
aforesaid treaties; the United States reserving the right of establishing factories, a 
military post, and roads within the boundaries above defined." 

Art. 6. The United States to make full compensation for the improvements on 
land within the Cherokee nation, which shall have belonged to the emigrating 
Cherokees, and to furnish flat-bottomed boats and provisions for their removal. 

Art. 7. Improvements on land ceded to the United States, to be paid for by 
the United States. There is a provision, also, in this article, that the profit of the 
improvements mentioned in article 6th, shall be applied to the benefit of poor and 
decrepid Cherokees. 

Art. 8. To every head of an Indian family, residing on the lands ceded by the 
Cherokees in this treaty, shall be allowed a section of land, that is 640 acres, pro- 
vided he wishes to remain on his land thus ceded, and to become a citizen of the 
United States. He shall hold a life estate, with a right of dower to his widow, and 
shall leave the land in fee simple to his children. 

Art. 9. Both parties to' enjoy a free navigation of rivers. 

Art. 10. The Cherokee nation cedes to the United States, certain small reserv- 
ations, without the present limits of the nation. 
Art. 11. The boundary lines to be marked. 

Art. 12. No whites to enter upon the lands ceded, till the treaty " shall be rati- 
fied by the President and Senate of the United States, and duly promulgated." 

Art. 13. The treaty to be in force as soon as thus ratified. 

The Treaty was signed on the 8th of July, 1817, by Andrew Jackson, and the 
other commissioners, and by thirty-one chiefs and warriors for the Cherokees, 
who expected to remain east of the Mississippi, and fifteen chiefs and warriors for 
the emigrating Cherokees, in the presence of nine witnesses. It was ratified by 
President Monroe and the Senate. 



46 



It would seem as though the public affairs of the Cherokees had been 
so ordered by Providence, as to present the very strongest conceivable 
exhibition of the obligation of treaties. It has usually been thought, 
that if a single plain stipulation were made between two nations, and 
duly ratified, this would bind the parties. I am now examining the fif- 
teenth treaty with the Cherokees, every one of which is perfectly consis- 
tent with every other ; and they all unite in leading to the same conclu- 
sion. As if this were not sufficient, the individual character and politi- 
cal consistency of our most prominent statesmen, not only lend their aid 
to confirm these national compacts ; but are actually personified, as it 
were, and embodied in the treaties. It may be doubted whether there 
is a similar instance in the annals of mankind. 

General Washington, soon after the organization of our national go- 
vernment, laid the basis of our Indian relations, in perfect consistency 
with the principles and practice of the early settlers and colonial rulers. 
Mr. Jefferson was a member of his cabinet, and doubtless intimately 
conversant with these fundamental measures. The five first Presidents 
of the United States made treaties with the Cherokees, all resting on 
the same acknowledged principles. Mr. Jefferson, the third President, 
having pursued the policy of General Washington on this subject, with 
more undeviating zeal than on any other subject whatever — being about 
to retire from the chief magistracy — and standing mid-way between the 
era of 1789 and the present year, wrote a fatherly letter to the Chero- 
kees, giving them his last political advice. This letter is preserved by 
them in their archives. A negotiation is held with them, on their own 
soil, or, as the title has it, " within the Cherokee nation," under the di- 
rection of the fifth President of the United States. The letter of Mr. 
Jefferson is produced and incorporated into a treaty. It is therefore 
adopted by the people of our land, and approved as among the national 
muniments, erected for the defence of our weak neighbours. What 
adds to the singularity of the transaction, is, that this letter, reaching 
backward and forward through five administrations, is adopted in the 
fifth, by a negotiator, who is now the seventh President of the United 
States ; thus bringing all the weight of personal character and political 
consistency to support as plain stipulations, as can be found in the Eng- 
lish language, or any other. May it not be said, then, that the case of 
the Cherokees has been prepared by Providence, that w r e may show to 
ourselves and to the world, whether engagements can bind us ; or whe- 
ther the imagined present interest of a small portion of the American 
people will transform itself into a Samson, and break national treaties 
by dozens, and by scores, " as a thread of tow is broken when it touch- 
eth the fire ?" 

If this case should unhappily be decided against the Cherokees, 
(which may Heaven avert !) it will be necessary that foreign nations 
should be well aware, that the People of the United States are ready to 
take the ground of fulfilling their contracts so long only, as they can be 
overawed by physical force ; that we as a nation, are ready to avow, 
that we can be restrained from injustice by fear alone ; not the fear of 
God, which is a most ennobling and purifying principle ; not the fear of 
sacrificing national character, in the estimation of good and wise men in 
every country, and through all future time ; not the fear of present 



47 



shame and public scorn ; but simply, and only, the fear of bayonets and 
cannon. 

But what does the letter of Mr. Jefferson, thus adopted and sanction- 
ed, and made the mouth-piece of the nation ; what does this letter, 
written after much deliberation and much experience, and on the eve 
of quitting public life, say to the Cherokees ? It says, that the United 
States will always regard both branches of the Cherokee nation as their 
children. (A good father, I suppose, does not tell lies to his children, 
nor break his promises to them ; especially promises that have been 
often repeated during the lapse of many years, and in which they have 
confided in making all their arrangements for comfort and usefulness 
through life.) It says that the Cherokees of the Arkansas must not 
enter upon lands claimed by other Indians, thus admitting that the wild- 
est savages have a claim to lands. It says, that all the individuals of the 
Cherokee nation have a right to their country; and, therefore, if a part 
of the nation surrenders to the United States its right to lands east of 
the Mississippi, it must receive from the United States a right to lands 
west of that river. It says, that those Cherokees, who choose to re- 
move, may emigrate with the good wishes and assistance of the United 
States, and that those who remain, may he assured, (yes, assured is the 
word of Mr. Jefferson, adopted by General Jackson,) " may be assured 
of our patronage, our aid and good neighbourhood." It would be dif- 
ficult to make any comments upon this passage, which would add to the 
impression which it cannot fail to make upon every fair and honourable 
mind. 

The preamble says, that the Cherokees relied upon the promises of 
the President of the United States, and took their measures accord- 
ingly. Why should they not rely upon his promises ? No President 
of the United States had broken faith with the Indians. But if these 
very promises, and a thousand others, should now be broken, there 
will be an end of reliance on our promises ; and out of tenderness to 
my country, and that we might not be unnecessarily reminded of the 
infamy thus laid up in store for future generations, I could heartily wish, 
that none of our public functionaries may ever hereafter make a pro- 
mise to an Indian. 



No. XIII. 

Fourth treaty of Washington, or sixteenth and last compact, 1819 — Abstract of 
the treaty — Recognition of industrious Cherokees — Permanent school fund for 
Indians east of the Mississipi — Incorporation of the Intercourse Law into the 
treaty — Provisions of that law — Incidental recognition of the rights of In- 
dians by the Supreme Court of the United States. 

There is but a single treaty more in this long chain of negotiations. 
It was executed on the 27th of Februrary, 1819, by John C. Calhoun, 
then Secretary of War, for the United States, and by twelve Cherokee 
Commissioners. It may be called 

THE FOURTH TREATY OF WASHINGTON ; OR THE SIXTEENTH 
AND LAST NATIONAL COMPACT BETWEEN THE UNITED 
STATES AND THE CHEROKEES. 
The preamble states, that " the greater part of the Cherokee nation have ex- 



48 



pressed an earnest desire to remain on this side of the Mississippi," and that they 
wish "to commence those measures which they deem necessary to the civilization 
and preservation of their nation ;" they therefore offer to cede to the United 
States a tract of country at least as extensive as the United States will be entitled 
to, according to the provisions of the preceding treaty. 

Art. 1. The Cherokee nation cedes to the United States all its lands, lying 
north and east of the following line : [By this boundary considerable tracts of land 
were ceded, which fell under the jurisdiction of Alabama, Tennessee, and Georgia. 
There was a reservation of about 100,000 acres, lying without the new boundary, 
for a school-fund for the Cherokees.] 

The cession in this article to be in full satisfaction for the lands on the Arkan- 
sas, given by the United States, in the next preceding treaty. 

Art. 2. The United States to pay for improvements on the ceded territory ; 
and to allow a reservation of 640 acres to each head of a family, who wishes to 
remain, and become a citizen of the United States. 

Art. 3. A reservation of 640 acres to each of 31 persons mentioned by name, 
" all of whom are believed to be persons of industry, and capable of managing 
their property with discretion." 

There were also eight other reservations of 640 acres to each of eight other per- 
sons designated. 

Art. 4. The land reserved for a school fund to be sold, in the same manner as 
the public lands of the United States, and the proceeds vested by the President of 
the United States, the annual income to be applied " to diffuse the benefits of ed- 
ucation among the Cherokee nation on this side of the Mississippi. 

Art. 5. Boundaries to be run as prescribed in former treaties. Intruders from 
th® white settlements to be removed by the United States, and proceeded against 
according to a law of Congress which was enacted March 30, 1802. 

Art. 6. Two thirds of the annuities shall hereafter be paid to the Cherokees on 
the east, and one third to those on the west of the Mississippi. 

Art. 7. The citizens of the United States not to enter upon the ceded lands, 
before Jan. 1, 1820. 

Art. 8. This treaty to be binding when ratified. 

The treaty was ratified by President Munroe and the Senate. 

The preamble of this last treaty declared, that the Cherokees, as a 
body, wished to remain upon their ancient territory, with a view to their 
national preservation. The treaty was therefore avowedly made with 
the same view. This is perfectly manifest from the words of the docu- 
ment ; and I feel warranted in saying, that the Cherokee chiefs, (who 
consented to the cessions of the first article with great reluctance,) 
were positively and solemnly assured, that the government of the United 
States did not intend to ask them to sell any more land. This is im- 
plied, indeed, in the preamble, which, after recognizing the desire of 
the Cherokees to remain and become civilized, adds, in effect, that the 
cession now made was so extensive, as not to require any future cession. 

To about forty individuals specific reservations were made by the 
third article, on the alleged ground, that these individuals were "per- 
sons of industry, capable of managing their property with discretion." 

A very small portion of the Cherokee population resided upon the 
land ceded ; yet from this small portion, (excluding, also, those who 
wished to emigrate from the ceded district to the Arkansas,) about 
forty heads of families were selected, ten years ago, as possessing the 
character above described. It is incontrovertible that the Cherokee 
nation has been improving to the present day. 

The number of industrious persons has been greatly increased, as 
could easily be shown by an induction of particulars, if my limits would 
allow. The words of the treaty are not more plain, therefore, nor its 
principles more just, than its spirit is humane and benevolent. 



49 



The fourth article looks directly at the permanent residence of the 
Cherokees on the territory of their fathers. The lands reserved for a 
school fund have not yet been sold ; but, when the treaty was signed, 
it was supposed that they would sell for a great sum of money. Simi- 
lar lands, not far distant, had been sold by the United States at auction, 
a year or two before, at very great prices. The principle tract reserved 
lies on the Tennessee, and, as was thought, would produce so large a' 
capital, that the interest would afford the means of education to all the 
children of the Cherokees. What is to be done with this sum ? The 
treaty says, the President of the United States shall vest it as a per- 
manent fund ; and that the annual income is to be applied " to diffuse 
the benefits of education among the Cherokee nation on this side of the 
Mississippi." Here is a permanent fund for a specific object ; and 
that object implies the permanent existence of the Cherokee nation 
eastward of the Mississippi. 

But the provision of the fifth article is still more important to the 
Cherokees. It would seem as if every contrivance was used, which 
human ingenuity could devise, for the purpose of binding the faith and 
constancy of the United States to a just and honorable course with the 
Indians. The integrity of their territory had been guaranteed by treaty. 
Rigorous laws had been enacted for the punishment of intruders. 
These laws had been executed. But the time might come when the 
laws would be repealed ; and when Congress would, by a feeble system 
of legislation, leave the Cherokees defenceless. In order to guard 
against this species of bad faith, a stipulation is here inserted, by which 
a certain law of the United States, so far as it relates to the intrusion 
of whites upon Indian lands, is made a part of the treaty. This law, 
therefore, as it respects the Cherokees, cannot be repealed by Congress. 
It is to be considered in just the same light, as if all those parts of it, 
which relate to intruders, had been literally copied into the treaty. Let 
us then look at some of its provisions. 

By the law of March 30, 1 802, it is enacted, (section 2,) that if 4 any 
citizen of the United States shall cross over, or go within, the boundary 
line, between the United States and the Indians, to hunt, or in any wise 
destroy the game ; or shall drive horses, or cattle, to range on any lands 
allotted or secured, by treaty with the United States, to any Indian 
tribes, he shall forfeit a sum not exceeding $100, or be imprisoned not 
exceeding six months.' 

By section 5th, it is enacted, ' that if any citizen shall make a set- 
tlement on any lands belonging, or secured, or granted, by treaty with 
the United States, to any Indian tribe, or shall survey, or attempt to 
survey, such lands, or designate any of the boundaries by marking trees, 
or otherwise, such offender shall forfeit a sum not exceeding $1,000, and 
suffer imprisonment not exceeding twelve months.' In the same sec- 
tion, the President is armed with full power to take such measures, and 
to employ such military force, as he shall judge necessary to remove 
from Indian lands any person who should " attempt to make a settlement 
thereon" 

There are other provisions in the act, all tending to the protection 
of the Indians, and to the preservation of their territory inviolate. This 
general law is now in force, in regard to all the Indians, whose lands 

7 



50 



are secured to them by treaty ; and in regard to the- Cherokees, let me 
say again, Congress cannot repeal it ; for it is incorporated into a 
solemn national compact, which cannot be altered, or annulled, without 
the consent of both parties. 

"Within a few months past, a train of surveyors, professing to acl 
under the authority of Georgia, have made an irruption into the Chero- 
kee nation, to the great annoyance and alarm of the peaceable inhabi- 
tants. These agents of Georgia have not only attempted to survey, 
but have actually surveyed, what they call an old Creek boundary, 
which they have doubtless designated by marking trees, and otherwise. 
Thus have they done the very thing which is forbidden by the 5th sec- 
tion above quoted, under a penalty of Q 1,000 and twelve months' im- 
prisonment. 

Even if the people of Georgia were right, as to the Creek boundary, 
they are not the proper persons to ascertain the fact. Several treaties 
between the United States and the Cherokees provide, that boundaries 
shall be ascertained by commissioners appointed by the United States, 
accompanied by commissioners appointed by the Cherokee nation. 
Can any good reason be assigned, then, why the President should not 
direct a prosecution to be commenced against these offenders, who 
have trampled on' a law, which is of vital importance to sustain the 
plighted faith of the nation ? 

It is said that the United States can make no treaty with Indians 
living within the limits of a State ; that is, within the limits of what ap- 
pears, by the map, to be one of the United States. I beg leave to make 
a distinction between a State, and the map of a State ; not having yet 
seen it proved, that the engraver of a map has the power of disinherit- 
ing a whole people, and delivering their property into the hands of 
others. What did the men, who formed the federal constitution, think 
of the extent of the treaty-making power ? This appears to me to be 
a pertinent question. It is certainly a question, to which a decisive 
answer can be given. In the first law of Congress, on the subject of 
intercourse with the Indians, which was enacted under our present 
form of government, the fourth section reads as follows : 

M That no sale of lands made by any Indians, or any nation or tribe of Indians, 
within the United States, shall be valid to any person or persons, or to any State, 
whether having the right of preemption to such lands or not, unless the same shall 
be made and duly executed at some public treaty, held under the authority of the 
United States.'' — [Judge Story's edition of U. S. Laws, p. 109.] 

This act was approved, July 22, 1790 ; only sixteen days before the 
execution of the Creek treaty, in the city of Xew York, which was 
described in my fourth number. The leading members of Congress 
had been leading members of the Convention, that formed the federal 
constitution. Their exposition of that instrument will not be contro- 
verted by any considerate writer or speaker ; and their decision, in the 
section just quoted, is as positive and peremptory, as can well be ima- 
gined. The same provision was continued in subsequent laws, and is 
found, in the law of March 30, 1802, in these words : 

" And be it further enacted, That no purchase, grant, lease, or other conveyance, 
of lands, or of any title or claim thereto, from any Indian, or nation, or tribe of In- 
dians, within the bounds of the United States, shall be of any validity, in law or 
equity, unless the same be made by treaty or convention, entered into pursuant to 



51 



the constitution : And it shall be a misdemeanor in any person, not employed un- 
der the authority of the United States, to negociate such treaty or convention, di- 
rectly or indirectly to treat with any such Indian nation, or tribe of Indians, for the 
title or purchase of any lands by thorn held or claimed, punishable by fine, not ex- 
ceeding one thousand dollars, and imprisonment, not exceeding twelve months." 

Then follows a proviso, that an agent from a State may be present, and propose 
terms, when commissioners of the United States are treating with the Indiansv 

In accordance with the constitution, and with the express provisions 
of these national laws, it has been the universal practice to obtain ces- 
sions of Indian lands through the medium of treaties, made under the 
authority of the United States. No fewer than nine of these treaties 
have been duly formed and ratified, in regard to small reservations of 
Indian territory, in the single State of New York. That great and 
powerful State has never yet complained that its rights, " as a sovereign 
and independent State," are in any way endangered or abridged, by a 
faithful adherence to the letter and spirit of the federal constitution. 

Thus, Messrs. Editors, I have gone through the long list of treaties 
which our country has made with the Cherokees, and which have re- 
ceived the highest sanction of the legislative and executive branches 
of our government ; and which, no doubt, will receive the sanction of 
the judiciary, whenever regularly brought before it. The Judges of the 
Supreme Court of the United States long since declared, incidentally, 
that the United States are bound by treaties to the Indians. Mr. Jus- 
tice Johnson said, nineteen years ago, (6 Cranch, p. 147,) "innumera- 
ble treaties formed with them, [the Indians,] acknowledge them to he 
an independent people ; and the uniform practice of acknowledging their 
right of soil, and restraining all persons from encroaching upon their 
territory, makes it unnecessary to insist upon their right of soil." Chief 
Justice Marshall said, that the Indian title " is certainly to be respected 
by all courts, until it be legitimately extinguished." This is enough for 
the perfect defence of the Cherokees, till they voluntarily surrender 
their country ; such an act on their part being the only way in which 
their title can be legitimately extinguished, so long as treaties are the 
supreme law of the land. 



No. XIV. 

Apology for this prolonged discussion — The people of the United States are jury- 
men in the case, and must hear it — The Cherokees have refused to treat for 
ten years — Scruples of Georgia about the treaty-making power — Perfect con- 
sistency of treaties — No evidence to the contrary — Laws, treaties, common 
sense, justice, all on the side of the Cherokees. 

It is well known, Messrs. Editors, that, a long series of numbers, on 
a single subject, is not apt to be read ; especially if it be of the nature 
of a legal or diplomatic discussion. On this account, I have felt many 
misgivings, in calling upon the public to follow me from one stage to 
another of the negotiations with the Cherokees ; but I have been ad- 
vised, that no part of the preceding numbers could be omitted without 
injury to the cause. If I were arguing this question before the Su- 
preme Court of the United States, simple references would be suffi- 



52 



cient in many cases, where I have felt it necessary to make quotations. 
Yet I think any candid lawyer will admit, that, if he were pleading the 
cause of the Indians before the highest tribunal in our country, he would 
be constrained, by faithfulness to his clients, to dwell much longer upon 
some topics than I have done. Let it be remembered, that those mem- 
bers of the American community, who may be justly denominated 
honest and intelligent, are to decide this question ; or at least, that they 
may decide it properly, if they will take the trouble to understand it, 
and will distinctly and loudly express their opinion upon it. 

And here let me humbly intreat the good people of the United States 
to take this trouble upon themselves, and not to think it an unreasona- 
ble task. Let every intelligent reader consider himself a juryman in the 
case ; and let him resolve to bring in such a verdict, as he can hereafter 
regard with complacency. It is not a single man, who is on trial, and 
who may lose his life by the carelessness of the jury. Sixty thousand 
men, women, and children, in one part of the United States, are now in 
constant expectation of being driven away from their country, in such a 
manner as they apprehend will result in their present misery and speedy 
extermination : — sixty thousand human beings, to whom the faith of the 
United States has been pledged in the most solemn manner, to be driven 
away — and yet is it possible that the people of the United States should 
be unwilling to hear their story, or even to require silence till their story 
can be heard ? 

I am encouraged, Messrs. Editors, to proceed, by the assurance, 
which has reached me from different quarters, that our community is 
not callous to every feeling of justice and honor, in relation to the In- 
dians ; that there is a greater disposition to inquire on this subject, than 
on any other now before the public ; and that even my numbers, defi- 
cient as they are in vivacity, are extensively read with that interest, which 
the magnitude of the cause, in all its bearings, may well excite. 

A few remarks upon the treaties with the Cherokees may not be use- 
less. 

It is a natural inquiry, Have there been any attempts to treat with 
this nation, since the year 1819? There have been many; and al- 
though the politicians of Georgia now think that the United States have 
no power to make treaties with the Indians, it is not more than one or 
two years since they were urging Congress to make appropriations for 
this object, and pressing the executive to procure the Cherokee country 
by negotiation. In regard to this matter, they have been extremely im- 
portunate. Mr. Monroe was teased by them during his whole presi- 
dency. Their scruples, as to the extent of the treaty-making power, 
are of quite recent origin ; and it is supposed, that they would not ve- 
hemently remonstrate, if a treaty should now be made, the terms of 
which should compel the Cherokees to take up their residence under 
the shade of the Rocky Mountains. The scruples about the treaty-mak- 
ing power seem not to have existed till after the Cherokees refused to 
treat any more. When chiefs and people had thus refused, at home 
and abroad, in their own territory and at Washington ; — When they 
had declared in writing, that there was not money enough in our na- 
tional treasury to purchase an additional foot of Cherokee land ; and 
when these declarations were made with a determination and constancy, 



53 



which left no hope of forming a treaty ; — then it was discovered, that the 
government of the United States possessed no power to make a treaty. 

There is a provision in the treaty of Hopewell, (the first treaty in the 
long series,) similar to the proposal made to the Delawares ; viz. ' That 
the Cherokees may send a deputy of their choice to Congress.' On 
this provision I omitted to make a remark, in the proper place, which 
may be introduced here. Though the treaty of Hopewell was formed 
under the old confederation, it is not the less binding on that account ; 
and good faith would now require, that the Cherokees should be allow- 
ed a privilege, as nearly as possible tantamount to what would have been 
the privilege of sending a deputy to the Old Congress.* 

Here then we have sixteen treaties with the Cherokees, negotiated 
from 1785 to 1819, ratified by five presidents, all resting on the same 
principles, — all consistent with each other, — and all now in force, ex- 
cept that some parts may have become obsolete by subsequent stipula- 
tions on the same subjects. The earlier treaties are repeatedly and 
solemnly recognized by later ones. An official letter of Mr. Jefferson 
is curiously wrought into a treaty, so as to form a connecting bond to 
the whole system. In the last treaty of all, negotiated by the present 
Vice President of the United States, a law of Congress is introduced 
for the permanent defence of the Cherokees. 

If we look into other treaties with Indians, from the Delaware treaty 
of 1778, (from which a quotation was made in my ninth number,) to the 
Creek treaty of 1826, the same inviolable territory, the same solemn 
guaranty, the same proffer of friendship and good neighbourhood, will 
every where be found. So many treaties had been formed with Indians 
previously to 1810, that Mr. Justice Johnson pronounced them " innu- 
merable." In none of these treaties is the original title of the Indians 
declared to be defective. In none of them is it said, that Indians have 
not the power of self-government ; or that they must come under the 
government of the several States. In no case, have the Indians signed 
away their inheritance, or compromitted their independence. They have 
never admitted themselves to be tenants at will, or tenants for years. 
Upon the parchment all stands fair ; and, so far as their present engage- 
ments extend, they are under no more obligation to leave their country, 
than are the inhabitants of Switzerland, to leave their native moun- 
tains. 

What is the evidence brought against this mighty mass of treaties ? 
Nothing ; absolutely nothing. The Secretary of War merely says, that 
the Cherokees were permitted to remain on the lands of Georgia. But 
where is his authority ? 

If we turn from treaties to the laws of the United States, we find the 
whole system of legislation made in exact accordance with the treaties. 
Nearly all these compacts required appropriations of money. When 
the appropriations were made, the treaties came of course under the 
view of both houses of Congress ; and every such appropriation was of 
course an assent of Congress to the treaty. 

Besides, some of the most important articles of treaties, were taken 
from previously existing laws of Congress. Thus, the 11th article of 

* Some other remarks, on the treaty of Hopewell, are anticipated in the third 
number, as published in this pamphlet, p. 13, and are therefore omitted here. 



54 



the treaty of Holston, is taken from the treaty made with the Creeks at 

New York, August 7, 1790, where it was inserted verbatim from " an 
act to regulate trade and intercourse with the Indian tribes," which was 
approved by President Washington, only sixteen days before. This 
discovery I have just made, and consider it as decisive evidence, that 
the treaty with the Creeks was a measure of great deliberation, and that 
the eminent men of that day laboured to make every part of their politi- 
cal system harmonize with every other part. 

If we leave both laws and treaties, and look at the conduct of our 
government toward the Indians, we find the declarations of Indian agents 
to have been always directed to this one point: viz. to satisfy the In- 
dians, that the government would deal justly and faithfully by them, — 
would perform all its engagements, — and would secure to them the per- 
manent possession of their country. They were constantly urged to 
become farmers, to educate their children, and form a regular govern- 
ment for themselves ; and all this, avowedly, with a view to their per- 
manent residence. This was done by General Washington — by Mr. 
Jefferson, by Mr. Madison, by Mr. Monroe, as can be shown from 
published documents : and probably by the elder Adams and his son. 

To treaties, laws, usage, — every public and every private pledge, — 
are to be added the dictates of reason and common sense, and the prin- 
ciples of immutable justice. All these stand on the side of the Chero- 
kees. Still Georgia demands all the land, which lies within what are 
called her chartered limits. The nature of this demand will be examined 
hereafter. 



No. XV. 

Complaints of Georgia — The question between Georgia and the Cherokees, if no 
other party were concerned — Claims on the ground of civilization — Answer of 
the Cherokees — Replication of Georgia — Doctrine of Vattel — It does not apply 
to this case — Vattel's opinion of the Puritans and Penn — The Cherokees not 
under the jurisdiction of Georgia. 

It has appeared, in the preceding discussion, that the United States 
have entered into solemn engagements with the Cherokees, by which 
we are bound, as a people, to defend their title and their sovereignty, 
and to protect them from every species of encroachments and aggres- 
sion. If this be not the obvious meaning of numerous and express 
stipulations, it will be impossible to frame articles in the English lan- 
guage, which shall express any meaning whatever. 

But Georgia complains that the government of the United States 
transcended its powers in making these engagements, which are there- 
fore to be considered null and void. The reader must bear in mind, 
that this complaint of Georgia is not of long standing. Indeed, I am 
not certain that the legislature has expressed it ; but the leading men of 
that State, and some of the newspapers, are loud in making and repeat- 
ing it. Till very recently, as was mentioned in my last, the authorities 
of Georgia have been urging the United States to make treaties with 
the Indians. 



55 



In order to come to a full understanding of this case, in all its bear* 
ings, let us inquire how the controversy would present itself, if the old 
thirteen States, after obtaining their independence, had never formed 
any system of confederation whatever, and each State were entirely, and 
in all respects, independent of every other State. The whole question 
at issue would then lie between Georgia and the Cherokees. Neither 
South Carolina, nor any other State, would have any right to interfere, 
however oppressively Georgia might conduct herself toward the Indians ; 
unless, indeed, South Carolina, or some other State, had made a treaty 
with the Cherokees, of the nature of an alliance offensive and defensive. 
On this supposition, both the allies would have a right, by the laws of 
nations, to speak to Georgia and to be heard. But we will suppose, that 
the Cherokees had made no treaty with any community upon earth, and 
were, as to their mode of living, precisely in their present condition ; 
that is, peaceably engaged in agricultural pursuits, and providing for 
their own families by the labour of their own hands. 

In these circumstances, the people of Georgia ask the Cherokees to 
remove ; who, in their turn, demand the reasons of so extraordinary a 
request. And here let me say, no good reasons can be given ; no rea- 
sons, which an honest man would not be ashamed to give, in any private 
transaction. But I will fairly state all the reasons, which have come to 
my knowledge, and would wish the reader to allow them every particle 
of weight to which they are entitled. 

The Georgians say to the Cherokees ; " We are a civilized people ; 
you are a vagrant, hunting, and savage people. By virtue of this dis- 
tinction, the lands which you occupy, and which your fathers called their 
hunting grounds, belong in reality to us ; and we must take possession. 
The writers on the law of nations bear us out in the demand." 

To such a statement the Cherokees might justly reply : " We are not 
about to dispute as to your being a civilized people, though the manner 
of urging this demand of the houses and lands of your poor neighbours, 
argues neither great modesty nor benevolence. We do not profess to 
be learned in the law of nations ; but we read the Bible, and have 
learned there some plain principles of right and wrong. The Governor 
of the world gave us this country. We are in peaceable possession. 
We have never acknowledged any earthly lord or sovereign. If our 
Creator has taken away our land and given it to you, we should like to 
see some proof of it, beside your own assertion. We have read in the 
book, which we understand you to acknowledge as the word of God, 
that, " to oppress a stranger wrongfully" is a mark of great national 
wickedness. 

" But we are not the sort of people that you take us to be. We are 
not vagrants, like some tribes of which we have heard ; nor were our 
fathers. They always had a fixed place of residence. And as to our 
wandering about, we have not the time. We are busy with our crops ; 
and many of us do not go so far as our nearest county court once a 
year, unless called out as jurymen. We do not hunt. Not a family 
within our bounds derives its subsistence from the chase. As to our 
being savages, we appeal to the white men, who travel on our turnpike 
roads, whether they receive any ill treatment. We have a legislature 
and a judiciary, and the judges of our supreme court are very rigid in 



56 



punishing immorality. We have herds of cattle, farms and houses, mills 
and looms, clothing and furniture. We are not rich ; but we contrive, 
by our industry, to provide against hunger and nakedness ; and to lay up 
something comfortable for winter. Besides these things, we have schools 
and places of public worship. Judge ye, whether we are such a sort of 
people, as the writers on the laws of nations had in their minds, when 
they talked of vagrants, hunters, and savages." 

To this the Georgians rejoin : " But you had no business to betake 
yourselves to an agricultural life. It is a downright imposition upon us. 
This is the very thing that we complain of. The more you work on 
land, the more unwilling you are to leave it, Just so it is with your 
schools ; they only serve to attach you the more strongly to your coun- 
try. It is all designed to keep us, the people of a sovereign and inde- 
pendent State, from the enjoyment of our just rights. We must refer 
you to the law of nations again, which declares that populous countries, 
whose inhabitants live by agriculture, have a right to take the lands of 
hunters and apply them to a better use." 

In answer to this legal argument, the Cherokees have only to say, 
that, even if Vattel had the power, by a flourish of his pen, to dispossess 
a nation of its patrimonial inheritance, the present case does not come 
within the limits which he has prescribed. Georgia is not populous. 
She has many millions of acres of unoccupied land. The Cherokees 
are not an " erratic people," to use the phrase of Vattel ; so that nei- 
ther part of the case answers to the description. 

When Georgia shall have a hundred souls to the square mile ; (and 
her soil is capable of sustaining a larger number than that ;) the Chero- 
kees may have four times as many to the square mile as Georgia now 
contains. 

If any one has the curiosity to read what Vattel has said on this sub- 
ject, he will find it in sections 81 and 209 ; where he will also find a 
commendation of the manner in which the Puritan settlers of New 
England, and the great founder of Pennsylvania, obtained possession of 
the lands of the natives, viz : by the consent of the occupants, and not 
by a reliance on the charters of kings. 

Thus stands the case on the law of nations ; and if Vattel were ad- 
mitted as absolute authority, and the Cherokees were left to their naked 
right, undefended by any compact, either with Georgia or the United 
States, they would have nothing to fear. No respectable lawyer, unless 
he is entirely deranged in his intellect, as a consequence of violent party 
feelings, will say that the doctrine of Vattel would take the lands of the 
Cherokees, and give them to Georgia. 

But it is added, that the Cherokees are in the chartered limits of 
Georgia ; and it is triumphantly asked, " Cannot Georgia govern her 
own territory ? Is she not entitled to her own property ?" This state- 
ment of the case is a mere begging of the question. It is not admitted 
that the Cherokees are now, or ever were, in the State of Georgia, in 
any such sense as is implied, by the confident tone here assumed. They 
have never acknowledged themselves to be in the State of Georgia. The 
laws of the United States, and the 11th article of the treaty of Holston, 
irresistibly imply, that Indian territory is not within the jurisdiction of 
any State, nor within the jurisdiction of any territorial district of the 



57 



United States. It seems, however, that our national statute-book is of 
very light authority, when compared with the supposed conclusions of a 
philosophical writer, whose theories are produced as the arbiters of a 
people's destiny. 

Let me ask here, whence did the Secretary of War derive the power 
of repealing an act of Congress ? This is a plain question ; and the 
people of the United States would like to receive a plain answer. Whence 
did he derive the power to set aside existing treaties ? The treaties and 
the laws assume, in the most unequivocal manner, that the Cherokees 
are not under the jurisdiction of Georgia, nor of any other State, nor of 
the United States ; that citizens of the United States have no right to 
enter the Indian country, except in accordance with treaty stipulations ; 
that it is a high misdemeanor, punishable by fine and imprisonment, for 
any such citizen to attempt to survey Indian lands, or to mark trees up- 
on them ; and that the Indian title cannot be extinguished, except by 
the consent of the Indians, expressed by a regular treaty. Yet the Secre- 
tary of War seems never to have known that any such laws or treaties 
are in existence. Is he not aware of all this ? or does he really think 
he has power to annul treaties and repeal laws, according to his sense of 
convenience and propriety ? 

But this is a digression. Having shown, as it seems to me, that 
Georgia can gain nothing by an appeal to the law of nations, I propose 
to inquire briefly, what support she can derive from the charter of the 
king of England. 



No. XVI. 

Not even a king can grant what he does not possess — The people of one continent 
have no right to dispossess the people of another continent — The proper uses of 
charters — Claims of the Pope, and of Queen Elizabeth — Charters of Georgia — 
Treaty of 1763 between England and Spain — Proclamation of George the 
Third — True meaning of protection. 

The next enquiry will relate to the title conveyed to the first Euro- 
pean settlers of Georgia, by the charter of the British crown. There 
are some people, even in our republican country, who appear to sup- 
pose that there is wonderful virtue in the grant of a king. But is it not 
manifest, on the bare statement of this subject, that not even a king can 
grant what he does not possess ? And how is it possible, that he should 
possess vast tracts of country, which neither he, nor any European, had 
ever seen ; but which were in fact inhabited by numerous independent 
nations, of whose character, rights, or even existence, he knew noth- 
ing. Many grants to American colonists were bounded by lines run- 
ning west from the Atlantic to the Pacific ocean. This was particu- 
larly the case with the charters of Georgia. Will it be seriously con- 
tended, that a royal grant of this kind conferred any rightful authority 
to dispossess of their territory the original occupants of the soil ? From 
such a principle it would follow, that all the aboriginal inhabitants 
might be lawfully driven into the ocean, and literally and utterly exter- 
minated at once ; for the European powers, by their proclamations and 
8 



58 



charters, divided the whole American continent among themselves. 
But who will dare to advocate the monstrous doctrine, that the people 
of a whole continent may be destroyed, for the benefit of the people of 
another continent ? 

It is very easy to understand, that England, France, and Spain, would 
find it convenient to agree upon certain boundaries among themselves, 
so that the subjects of one European power might not come into colli- 
sion with the subjects of another. All this was wise and proper ; and 
when it was accomplished, one of these powers might properly grant 
unoccupied lands to its subjects ; not encroaching, however, upon the 
original rights of the natives, Or the conventional rights of Europeans. 
For these two purposes, viz ; The prevention of strife between new 
settlers, and the establishment of colonies upon territory not claimed, 
or the claims to which had been, or might be amicably extinguished — 
the charters of European governments were extremely valuable. Fur- 
ther than this they could nut go ; and the idea that they could divest 
strangers of their rights is utterly preposterous. 

It is true that the Pope, immediately after the discovery of America, 
issued a bull, by which the kings of Spain were authorized to conquer 
and subdue all the inhabitants of the new world, and bring them into 
the pale of the Catholic church. About a hundred years afterwards, 
Queen Elizabeth, much in the spirit of popery, issued a proclamation, 
by which she directed her subjects to subdue the Pagans of this conti- 
nent. But the people of Georgia will not build upon either of these 
foundations. None of the Protestant colonists professed to act upon 
such principles ; and the first settlers from England, as a general thing, 
if not universally, obtained of the natives, by treaty, the privilege of 
commencing their settlements. Whenever they afterwards got posses- 
sion of lands by conquest, they did so in consequence of what they con- 
sidered to be unprovoked wars, to which the Indians were instigated, 
either by their own fears and jealousies, or by the intrigues of European 
nations. It is undeniable, that the English colonists, as a body, and for 
a hundred and fifty years, disavowed, in principle and practice, the doc- 
trine that the aborigines might be driven from their lands because they 
were an uncivilized people, or because the whites were more powerful 
than they. I have not been able to find an assembly of legislators, an- 
terior to December 1827, laying down the broad principle, that, in this 
case, power becomes right ; a memorable declaration, which was made 
by the legislature of Georgia, in one of the paroxysms of the present 
controversy. 

Let it be fixed in the mind, then, that the charters of British kings, 
however expressed, or whatever might seem to be implied in them, could 
not divest the Indians of their rights. 

The charters of Georgia are cited in the famous case of Fletcher vs. 
Peck, (6 Cranch, p. 87,) and it may be presumed, that all the parts which 
have a bearing on this investigation? are there copied. The first charter 
was granted by Charles the Second, one hundred and sixty three years 
ago, and embraced all that part of North America which lies between 
29 and 36^ degrees of north latitude ; that is, a tract of country more 
than five hundred English miles broad, extending from the Atlantic 
ocean to the Pacifie. It granted the territory, " together with all ports. 



39 



harbors, bays, rivers, soil, land, fields, woods, lakes, and other rights and 
privileges therein named." So far as appears, the charter said nothing 
of the native inhabitants. Whether it said any thing in regard to them, 
or not, is immaterial to the case now in hand : for as I have already 
observed, no man will undertake to maintain the proposition, that the 
unknown tribes and nations between the Atlantic and the Mississippi, 
and thence westward to Mexico and the Pacific, could have their rights 
and property justly taken from them by the signature of the British king, 
in his palace of Whitehall. 

The rights derived from this charter were surrendered to the British 
crown in the year 1729. Three years afterwards, George the Second 
incorporated James Oglethorpe and others, as a charitable society, 
which he styled " The Trustees for establishing the Colony of Georgia, 
in America, with perpetual succession." To this corporation he grant- 
ed all lands lying between the rivers Savannah and Altamaha, and be- 
tween parallel lines, drawn westward to the Pacific, from the heads of 
said rivers respectively, " with all the soils, grounds, havens, bays, 
mines, minerals, woods, rivers, waters, fishings, jurisdictions, franchises, 
privileges, and preeminences, within the said territories." 

In the year J 752, this charter also was surrendered to the crown. A 
royal government was instituted in 1754, over the colony of Georgia, 
which was bounded in the same manner as the tract granted to the cor- 
poration above described. This tract embraced all the northern part 
of the present states of Georgia, Alabama, and Mississippi, and extend- 
ed westward to the South Seas, as the Pacific Ocean was then called. 

By the peace of 1763, it was agreed between England and Spain, 
that the Mississippi should be the western boundary of the British col- 
onies. The same year a proclamation was issued by George the Third, 
which, among other things, annexed to the colony of Georgia, what is 
row the southern part of the states of Georgia, Alabama, and Missis- 
sippi. 

The same proclamation contains the following passage : 

** That it is our royal will and pleasure for the present, as aforesaid, to reserve 
zander our sovereignty, protection, and dominion, for the use of the said Indians, 
all the land and territories not included within the limits of our said three new go- 
vernments, or within the limits of the territory granted to the Hudson's Bay Com- 
pany, as also all the land and territories lying to the westward of the sources of the 
rivers, which fall into the sea from the west and northwest as aforesaid; and we do 
hereby strictly forbid, on pain of our displeasure, all our loving subjects from ma- 
king any purchases or settlements whatever, or taking possession of any of the 
lands above reserved, without our special leave and license for that purpose first 
obtained." 

The lands now in dispute between Georgia and the Cherokees are 
within the description, which is printed in italics ; and were therefore 
reserved "jfor the use of the Indians*" Thus matters remained, so far 
as the British government was concerned, till the close of the revolu- 
tionary war. By the peace of 1783, the colony of Georgia was ac- 
knowledged to be one of the independent states of America. There 
can be no doubt, that the state of Georgia thenceforward might exer- 
cise, within her proper limits, all that authority, in regard to the In- 
dians, or any other subject, which either the colony of Georgia, or ths 



60 



British government might have rightfully exercised within the same 
limits. It is to be understood, however, that any modifications of her 
power, which Georgia afterwards made, either by entering into the old 
confederation, or by adopting the present national constitution, are to 
be duly regarded. 

There are no means within my reach, by which the claims of the 
British government, in regard to the possessions of the Indians, can be 
accurately known. Nor is it of any consequence that they should be 
known. Unless they were founded in reason and justice, they could be 
of no validity ; and in regard to what is founded in reason and justice, 
impartial, disinterested, intelligent men of the present day, can form as 
correct an opinion, as could be formed by the kings of England. 

It is admitted on all hands, and is even strenuously contended for 
by the people of Georgia, that the Indians were considered by the 
British crown, as under its protection. From this claim of the crown, 
it is inferred, that the Indians held their lands by permission of the 
crown. Now I humbly conceive, that here is too large a leap from 
the premises to the conclusion. There is a distinction between afford- 
ing protection and usurping unlimited control over rights and property. 
How many small states remained for hundreds of years under the pro- 
tection of the Roman Republic ? The greatest men in that republic 
were always proud of their good faith to their dependent allies, so long 
as these allies remained faithful. The right of retaining their territory, 
laws, customs, and habits of living was not invaded. How many small 
states are there in Europe, at this moment, possessing a limited sove- 
reignty, and remaining under the protection of larger states, yet exer- 
cising the right of administering their own government, in regard to 
many essential things, as truly as the state of Massachusetts, or South 
Carolina, administers its own government ? 

Would it not be safer to infer, that the Indians were claimed to be 
under the protection of Great Britain because they had important 
rights, which needed protection ? rights which were in danger from 
the encroachments of other European nations, the avarice and fraud 
of speculators, and the hostile machinations of neighbouring tribes ? A 
guardian is the acknowledged protector of his ward. Is it sound law, 
therefore, that the guardian is the sole owner of his ward's property ; 
and may set the helpless orphan adrift in the world ? The father is 
the protector of his children : may he, therefore, oppress them, dis- 
hearten them, and thus prepare them to become outcasts and vaga- 
bonds ? A husband is the protector of his wife : may he, therefore, 
abuse her, repudiate her without cause, and drive her from her own 
house and her patrimonial inheritance ? 

The people of the United States may conclude, therefore, without 
the least danger of mistake, that the rights of the Cherokees and Creeks 
were not taken from them by a royal proclamation. The thing is im- 
possible in itself ; and the proclamation does not assert, nor imply, that 
the rights of the Indians were to be disregarded, 



61 



No. XVIL 

Controversies about unappropriated lands — Indian title always respected— First 
intercourse of Oglethorpe with Indians, 1733 — Treaty of Savannah — Abstract 
of it — -Ratified in London — Treaties written by the English — Visit and speech of 
Tomochichi — Reply of George II. — Treaty with the governor of St. Augustine. 

At the close of the revolutionary war, great controversies arose, in 
regard to the disposal which should be made of the unappropriated 
lands lying within the limits of the United States, as defined by the 
treaty of 1783. Lands were considered as unappropriated, if they had 
not been parcelled out to the whites. If Indians were in possession, 
and living on amicable terms with their white neighbours, it was taken 
for granted that the Indian title must be lawfully extinguished, before 
the whites could be justified in taking possession ; and such an extin- 
guishment of Indian title could be obtained by the consent of the ori- 
ginal owners, but in no other way. 

Some of the States contended, that the vast tracts lying to the west 
and northwest of the portion inhabited by whites, should be made a 
common fund, and held for the common benefit ; as the whole had been 
secured by the common privations and sacrifices. Other States were 
determined to retain all the territory, which fell within the limits de- 
scribed in their original charters. It is not my intention to enter at all 
into a dispute which was put at rest, as a practical matter, by various 
conventional arrangements, made between particular States and the 
United States, from 1781 to 1802. My object, in adverting to the sub- 
ject here, is, that the reader may be aware of the existence of such a 
controversy. Virginia set an example of public spirit, by relinquishing 
to- the United States her claim to the vast tract northwest of the river 
Ohio ; and it was contended that Georgia ought to relinquish all claim 
to the lands on her western waters. These relinquishments, actual or 
contemplated, were not considered as affecting, or as likely to affect, 
the Indian title. Every cession was subject to this title. In other 
words, every party was considered as bound to deal justly with the In- 
dians, and to recognise their territorial rights. 

On the supposition that Georgia had, at the conclusion of the Ameri- 
can war, an unquestionable right, on every ground of law and honour, 
to all the land within the limits of the king's charter, subject only to 
the Indian title, it would remain to inquire whether her jurisdiction 
could be fairly and properly extended over the original inhabitants, or 
their country. To me, it seems perfectly clear, that Georgia could 
have claimed no jurisdiction at all over the Creeks or Cherokees, or over 
their territory. They were, respectively, a separate people, living under 
their own laws, upon their own soil. No argument, but that of force, 
could have been adduced, in favour of taking away their possessions ; 
and, if they had been able to defend themselves, no argument would 
ever have been thought of. Could the Cherokees now bring into the 
field a formidable array of bayonets, all these arguments about the hun- 
ter state, would be suffered to repose in quiet, with other lumber of the 
schools. The more savage the Indians were, the less inclined the peo- 



62 



pie of Georgia would be to have a quarrel with them ; and the more 
readily would all their territorial and national rights be acknowledged. 

The claims of Georgia, which are set forth as being supported by the 
law of nations and the king's charter, have been examined ; and, unless 
I am mistaken, have been shown to be altogether groundless ; especially 
when compared with the strong title of immemorial possession. But 
there is no need of resting the case here, however safe it would be here 
to rest it. 

I therefore proceed to show, that Georgia has, during her whole his- 
tory, till within a very few years, admitted the national character and 
territorial rights of the Creeks and Cherokees ; and that she is bound, 
by numerous public acts performed by her, in the very capacity of 
which she is most proud and jealous, (that of a sovereign and indepen- 
dent State,) for ever to admit and respect the rights of the Cherokees, 
unless these rights shall hereafter be voluntarily surrendered. 

In the year 1733, James Oglethorpe commenced a settlement on the 
site where Savannah now stands. In his first letter to the corporation, 
whose agent he was, dated February 10th, he says: " A little Indian 
nation, the only one within fifty miles, is not only in amity, but desirous 
to be subjects to his majesty King George, to have lands given them 
among us, and to breed their children at our schools. Their chief and 
his beloved man, who is the second man in the nation, desire to be in- 
structed in the Christian religion." It appears from M* Call's History 
of Georgia, Con which I shall rely as authority for several succeeding 
statements,) that this little tribe of Indians, which is now extinct, must 
have received a splendid account of the power and benevolence of the 
British king. How much they understood of what was implied in be- 
coming his subjects, cannot be known. They were doubtless informed, 
that the settlers were intending to live in a compact manner, and to 
have schools and preaching ; and that the Indians would act wisely, if 
they would be friends to the English, and live in the same manner. 
They might naturally, therefore, have been pleased with the notion of 
taking farms for cultivation, side by side, with the new settlers. This 
must have been the meaning of their having lands given them among 
the settlers, for the old English doctrine of seisin in fee, and of the fee 
being in the king, was too metaphysical an idea to have found a lodg- 
ment in their unsophisticated heads. Indeed, it is quite ridiculous, to 
embarrass this question with the abstract terms, and nice distinctions, 
which had their origin in the feudal tenures of Europe. The whole 
philosophy, and the whole morality of the Indian title, as opposed to the 
encroachments of the European settlers, might be thus expressed by the 
Indians : " These lands are ours. We had them from our fathers. 
- They are not yours. Neither you, nor your fathers, nor your king, 
ever had them. When w T e consent to your taking them, they will be 
yours. Till then, they belong to us." 

If the little tribe of Indians, who had the possession of the lands at 
the mouth of Savannah River, consented to the settlement of Oglethorpe, 
and if their consent was obtained fairly and honourably, (which I am 
not inclined to question,) then the founder of the State of Georgia had 
a rightful possession. The lawfulness of his possession, as against the 



63 



Indians, was founded altogether upon their consent : while, in regard to 
the whites of South Carolina, he might justly plead the king's charter. 

" But as this tribe was inconsiderable," says the historian, " Ogle- 
thorpe judged it expedient to have the other tribes also, to join with 
them in the treaty.'''' So, it seems, that Oglethorpe supposed the In- 
dians to be capable of making a treaty, as all the early settlers had 
done, from the discovery of America to that day, and as all his succes- 
sors continued to do, till this same Georgia controversy has, within two 
years past, led to the discovery, that Indians are not capable of being 
treated with. It is morally certain, that the colony of Oglethorpe would 
have been of short duration, if he had told the Indians, that he, acting 
under the' king of Great Britain, was the owner of all the lands from 
Savannah to the Altamaha, and thence westward to the other side of 
the world ; and that he could not form any compact with them, because 
they were incapable of making a bargain. Had the whites distinctly 
avowed such principles of morality and law, they would never have es- 
tablished themselves on this continent beyond the reach of their guns. 
No other refutation of so monstrous a system seems necessary, than its 
utter impracticability, at the commencement of the settlements. In 
other words, the emigrants from Europe could never have become 
strong enough to throw off all the restraints of justice, and disavow the 
most obvious principles of moral honesty, unless they had been, or at 
least, had pretended to be, honest and just during a period of two hun- 
dred years. 

Oglethorpe, having found an interpreter summoned a meeting of the 
chiefs to hold a congress with him at Savannah, in order to obtain 
" their consent to the peaceable settlement of the colony." About fifty 
chiefs assembled. Oglethorpe represented to them " the great power, 
wisdom, and wealth of the English nation, and the many advantages 
that would accrue to the Indians in general, from a connexion and 
friendship with them ; and, as they had plenty of lands, he hoped they 
would freely resign a share of them to his people, who were come to 
settle among them for their benefit and instruction." 

This is the first overture of the colonists to the assembled Indians ; 
and it certainly does not look much like demanding the whole country, 
in the name of the king of England. It seems more like a humble 
intreaty for permission to remain, which permission was solicited for 
the purpose of doing good to the natives. The consent of the lords of 
the soil was obtained, and a treaty was made, of which the following 
is an abstract : 

TREATY OF SAVANNAH. 
The preamble recites the authority of Oglethorpe, and says that certain " arti- 
cles of friendship and commerce" were made between him "and the chief men 
of the nation of the Lower Creeks," viz. 

1. The colony engages to let traders carry goods into the « Creek nation" for sale. 

2. The colony engages to make restitution to the Creeks for any injury which 
shall be done to them by white traders, and to punish the offenders according to 
English law. 

3. If the Creeks should not treat the traders well, the colony will withdraw the 
English trade. 

4. The Creeks say, that they are glad the English have come, and add these 
memorable words : " Though this land belongs to us, (the Lower Creeks,) yet we, 
that we may be instructed by them, (the English,) do consent and agree, that they 



64 



shall make use of, and possess, all those lands which our nation hath not occasion 
to use : Provided always, that they, upon settling every new town, shall set out 
for the use of ourselves, and the people of our nation, such lands as shall be agreed 
upon between their beloved men, and the head men of our nation ; and that these 
lands shall remain to us forever" 

5. The Creeks agree not to do any injury to any of the traders ; but if any In- 
dians should transgress this article, the nation will deliver them up, to be punish- 
ed according to English law. 

' 6. The Creeks agree to apprehend and restore runaway negroes. 

7. The Creeks to give no encouragement to white settlers from other European 
nations. 

A schedule of prices of articles, exchanged for peltry, was also agreed upon. 

This treaty was ratified by the corporation, in the city of London, 
October 18, 1733. 

So far as appears, Oglethorpe was entirely fair and honest in this 
whole transaction. The Indians confided in all his statements, and both 
parties doubtless supposed that the colony would conduce to the per- 
manent advantage of the Indians, and that they and the settlers would 
live together in friendship, according to the import of the preceding 
articles. The corporation, in ratifying the treaty, declare that they 
are * greatly desirous to maintain an inviolable peace to the world's 
end.' 

It is to be remembered, that all treaties with the Indians were written 
by the English, and that there is no probability that they made the ex- 
pressions stronger against themselves, than they actually were. Yet 
here is a firm and decided protestation of the Creeks, that the grants 
which they made out of friendship, should never be construed as an ad- 
mission that they had no original title. They also took care to provide 
that no new settlement should be made without their consent. If the 
colony intended to rely upon the right of the English king, here was 
the time and place to have asserted it, and to have obtained, if possible, 
the acknowledgment of it from the Indians. 

The principal speaker in this council was a Creek chief, called To- 
mochichi. When Oglethorpe returned to England, in the spring of 
1734, this chief was induced to accompany him. On being introduced 
to King George, he made a flourishing speech, in which, however, he 
does not admit that the king of England is his liege lord and sovereign. 
He gave the king some eagles' feathers, " as a token of everlasting 
peace ;" and concluded by saying, " Whatever words you shall say 
unto me, I will faithfully tell them to all the kings of the Creek na- 
tion." This is all the allegiance he promised. King George expressed 
his kind regards, gave thanks for the eagles' feathers, and concluded by 
saying, " I shall always be ready to cultivate a good correspondence 
between the Creeks and my subjects ; and shall be glad on any occasion 
to show you marks of my particular friendship." 

Here is no arrogant claim of sovereignty, on the ground of the divine 
right of kings, or any other factitious title. Indeed, the king of Eng- 
land implicitly says, that the Creeks are not his subjects. 

When the old chief Tomochichi died, in 1739, he charged his people 
to remember the kindness of the king of England, and hoped they 
would always be friendly to his subjects ; thus making the very distinc- 
tion which the king himself had made. 

In the year 1736, Oglethorpe made a treaty with the Spanish Gover- 



65 



nor of St. Augustine, in which the second article reads as follows : 
" In respect to the nations of free Indians, called Creeks, I will use my 
utmost amicable endeavors, upon any reasonable satisfaction given them, 
to prevail with them to abstain from any hostilities whatsoever, with the 
subjects of his Catholic majesty." 

Here it is evident that Oglethorpe saw, as no man in his circumstan- 
ces could help seeing, that the Creeks were an independent people ; and 
that they must decide for themselves, whether they would go to war with 
the king of Spain, or not. He would advise them, however, to accept 
of reasonable satisfaction. 



No. XVIII. 

Second treaty of Georgia with the Indians, 1738 — Assertion of right by the Creeks 
— Stipulations of Oglethorpe in favour of the Creeks — Claims of Bosomworth 
■ — War with Virginia and other colonies — Engagements of the king's agent — 
Treaty of Augusta, or fourth compact of Georgia, 1763 — Cessions of land in 
1773 — Treaty of Duet's corner, 1777 — Second treaty of Augusta, or sixth com- 
pact, 1783 — Objects of these treaties — Postscript. 

As Georgia is so strenuous an advocate for State Rights, and protests 
so strongly against any interference on the part of the general govern- 
ment, the inquiry how far she has herself acknowledged the national 
character of the Creeks and Cherokees becomes peculiarly interesting. 

In 1738, Oglethorpe renewed the treaty of friendship and alliance, 
of which an abstract was given in my last number. The next year he 
took a journey into the wilderness, four hundred miles, as the distance 
was then computed, having been previously invited thither by the 
Creeks of the Coweta towns. There he was received with the greatest 
kindness, and had the opportunity of conferring with deputies of the 
Creeks, Chickasaws, and Cherokees* On the 7th of August, another 
treaty was made between him and " the assembled estates of all the 
Lower Creek nation." This may be called 

THE SECOND TREATY OF GEORGIA WITH THE INDIANS. 

The instrument begins by enumerating the towns and tribes of the 
Creeks which were represented in the council. The Indians then de- 
clared, without a dissenting voice, that they adhered to their ancient 
love to the King of Great Britain. They next declared, that all the ter- 
ritory from the Savannah to the St. John's, with the intermediate 
islands, and from the St. John's to the bay of Appalache, and thence to 
the mountains, " doth, by ancient right, belong to the Creek nation, who 
have maintained possession of said right against all opposers, by war, 
and can show the heaps of bones of their enemies, slain by them in de- 
fence of the said lands." They further declared, that they were under the 
protection of the king of England, and would not suffer the Spaniards, 
or any other nation but the English, to settle upon the territory. They 
acknowledged that they had granted to the corporation for which Ogle- 
thorpe acted * the lands from the Savannah to the St. John's, and as far 
9 



66 



back from the coast as the tide flows.' But they reserved to themselves 
three islands, and a small district adjoining Savannah. 

Oglethorpe engaged, on his part, that the English should " not take 
any other lands except those granted by the Creek nation to the trustees," 
and that he would punish any person who should intrude beyond the li- 
mits. He issued a proclamation immediately afterwards, in which he 
says : " Know ye, that you are not to take up or settle any lands beyond 
the above limits settled by me with the Creek nation.'''' 

About the year 1747, a man by the name of Bosomworth, having 
married a half Indian woman, claimed, in her right, all the lands in the 
possession of the colony, and artfully induced the Creeks to support 
his claim. He greatly endangered the safety of Savannah, and put all 
the settlements into the greatest alarm. It is not a little curious, that 
he instigated the Indians to assert that Oglethorpe and his followers had 
been merely tenants at will of the Creeks from the beginning ; applying 
the same phraseology to the whites, as the legislature of Georgia has 
recently applied to the Cherokees, and with much greater plausibility. 
Although Mr. Stephens, then governor of Georgia, did not admit the 
claim of Bosomworth and his wife, yet the whole affair evinced that it 
would have idle and dangerous for the settlers to have pretended any 
other right to the country, than that which they had acquired with the 
consent of the natives.* 

Before 1 760, a destructive war existed between the Cherokees and 
the colonists of Virginia, the Carolinas, and Georgia. During the con- 
test many cruelties were perpetrated on both sides. The southern 
States were unable to defend themselves, and applied for aid to General 
Amherst, commander of the British forces in America, from whom in- 
dispensable assistance was twice received. A treaty of peace was at 
last made between the Cherokees and the colonies, the terms of which 
I do not find. 

Soon after the close of this war, captain Steuart, a sagacious and in- 
telligent man, having been much acquainted with the Indian character, 
was appointed, by the king, superintendent of Indian affairs for all the 
territory south of Virginia. He convened a general congress of Indians 
at Mobile, where he made a long speech to them, addressing the differ- 
ent tribes in succession. At the close of his speech, he said, — - 

" Lastly, I inform you, that it is the king's order to all his governors and sub- 
jects, to treat Indians with justice and humanity, and to forbear all encroachments 
on the territories allotted for them. Accordingly all individuals are prohibited from 
purchasing any of your lands ; but as you know that your white brethren cannot 

* It is a remarkable fact, that Bosomworth induced the Creek chiefs, or rather 
a few of them, to appoint a general agent to transact their business for them, and 
then inveigled this agent to make a deed to him [Bosomworth] of the three re- 
served islands, and the small tract near Savannah. After he had occasioned much 
trouble to the colonial government, he went to England, and commenced a suit on 
the strength of this Indian grant. The litigation continued twelve years, when 
one of the islands was adjudged to him. He returned to America, and he and his 
wife lived and died on the island. From the account of this law-suit, which is 
given in McCalPs History of Georgia, it would seem as though the English tri- 
bunals not only admitted the validity of Indian title, but of Indian grants to indi- 
viduals, gome time afterwards, the King of England prohibited his subjects from 
snaking purchases of land from the natives. 



67 



feed you when you visit them, unless you give them grounds to plant, it is expected 
that you will cede lands to the king for that purpose ; but whenever you shall be 
pleased to surrender any of your territories to his Majesty, it must be done, for the 
future, at a public meeting of your nation, when the governors of the provinces, 
or the superintendent, shall be present, and obtain the consent of all your people- 
The boundaries of your hunting grounds will be accurately fixed, and no settle- 
ment permitted to be made upon them. As you may be assured that all treaties with 
you will be faithfully kept, so it is expected that you also will be careful strictly to 
observe them." 

It is not necessary to detain the reader with any comments on these 
declarations of the authorized representatives of the British crown : only 
let them be compared with the present claims of Georgia. 

TREATY OF AUGUSTA; OR FOURTH TREATY WITH THE IN- 
DIANS, IN WHICH GEORGIA WAS A PARTY. 

A great meeting of chiefs of the Catawba, Cherokee, Choctaw, 
Chickasaw, and Creek nations, was convened at Augusta, by invita- 
tion of the colonists, at which were present Gov. Wright, of Georgia, 
Gov. Boone, of South Carolina, Gov. Dobbs, of North Carolina, Lieut. 
Gov. Fauquier, of Virginia, and Capt. Steuart, Superintendent of In- 
dian affairs in the southern department. A treaty was concluded, 
Nov. 10, 1763, by which a cession of lands was made in satisfaction 
of debts, which the Indians had contracted with the English. The 
Cherokees and Creeks united in this grant, which, with what had been 
previously granted, embraced all the sea-coast of Georgia, and so far 
back as to make about one-eighth part of the State, as it now appears 
on the map, or one-twentieth part within the limits, which were fixed 
by the king of England, for his colony of Georgia, after the peace with 
Spain of the sime year, and which include Alabama and Mississippi. 

Having given an account of this treaty, the historian adds, " I be- 
lieve it may be said of Georgia, that there has been no instance in which 
lands have been forced from the aborigines by conquest ; and that, in 
all cases, the Indians have expressed their entire satisfaction at the com- 
pensations which have been given them for acquisitions of territory." 
The history was published in 1811. 

I most sincerely desire that the historian, who shall write a hundred 
years hence, may be enabled to say the same thing. It can never be 
truly said, however, that Georgia has not repeatedly, within a few years 
past, threatened to take the lands of Indians by force, and thus been 
chargeable with oppressing them, by creating the most serious alarm 
among them. 

The Creek Indians, not being very skilful casuists in distinguishing 
between rights to real and personal property, interpreted the treaty in 
such a sense as to give them a right to cattle and horses, which they 
found straggling in the woods on their lands. They fairly remonstrated 
with Gov. Wright, however, against the whites permitting their stock 
to stray over the boundaries. Having occasion to use some horses, 
which were found there, the Indians took several. A party of the whites, 
irritated by the loss of their horses, made an irruption into the Creek 
country, re-took the property, remunerated themselves to their own 
satisfaction for other losses, and burned all the houses in the towns. 



68 



The chiefs came to Savannah and complained of this harsh treatment ; 
the governor made them compensation, and peace was restored. Let 
the reader decide, which party gave the most evidence of savage man- 
ners in this transaction. 

In 1773, a convention of Creeks and Cherokees was held at Au- 
gusta, when another tract of land was ceded to the colonists, in payment 
of debts. 

When the revolutionary war broke up, the Indians took the side of 
the mother country. A peace was concluded with the Cherokees by 
the commissioners of Georgia, at Duet's Corner, South Carolina, May 
20, 1777. 

Hostilities were afterwards renewed. In May, 1783, the Cherokee 
chiefs were invited to Augusta, and six distinguished men were ap- 
pointed by Georgia to negotiate with them. A treaty was concluded 
on the 30th of that month, establishing the boundary of the Chatahoo- 
chy, which remained the line of dernarkation between Georgia and the 
Cherokees till long after the treaty-making power had been given to the 
general government. It is still the boundary in part. 

This treaty was declared to be made between the state of Georgia 
(then, as averred by that instrument, in the seventh year of its inde- 
pendence) and " the head men, warriors, and chiefs of the hordes or 
tribes of Cherokee Indians, in behalf of the said nation." 

The two objects of the treaty were peace and a definite boundary, 
both of which were obtained on the undisputed basis of the Cherokees 
being a " nation" and having territorial rights. Why is not Georgia 
bound by this treaty, made by herself, in the plenitude of her inde- 
pendence, signed by her governor, and by the late Col. Few, who was 
one of her delegates to form the federal constitution, and by four others 
of her most valued citizens ? Here can be no pretence of encroach- 
ment on the rights of Georgia by the national authorities of the United 
States. The act is exclusively the act of Georgia, performed by her 
own agents, and for her own benefit. 

This treaty, being made on the same principles as the preceding 
ones, is an implicit attestation to the validity of them all, and should se- 
cure the Cherokees the peaceable possession of their country. 

P. S. It will be some weeks, Messrs Editors, before I shall offer 
another communication to your columns. With your- permission, I pro- 
pose, then, to examine the following questions : 

How far Georgia is bound by the acts of the general government, in 
pursuance of the treaty-making power ? 

How far the Cherokees are implicated in the compact of 1802 be- 
tween Georgia and the United States ? 

How far Georgia has assented to treaties actually made between the 
United States and the Cherokees ? 

And, in conclusion, having considered the demands of justice, I 
shall briefly inquire, whether a benevolent and upright man, with a full 
knowledge of the case, would advise the Cherokees to sell their country, 
and remove beyond the Mississippi ? 

.Nat. Intell Oct. 14, 1829. 



69 



No. XIX. 

Statement of important positions on this subject — Other treaties with Georgia— 
Treaty-making power of the general government — Are the Indians capable of 
making a treaty ? — Are engagements with them to be called agreements ? — The 
Supreme Court cannot pronounce a treaty void — Supposed case of Mr. Girard 
— Whether the national government can cede the territory of a State. 

In the postscript to my last number, I proposed to suspend my com- 
munications for some weeks, announcing, at the same time, several to- 
pics, which remained to be discussed. This annunciation seems not to 
have been sufficiently explicit. I must be permitted, therefore, to 
state, in the use of different phraseology, the points, which ought still 
to be examined, before the strength of the Cherokee cause can be justly 
estimated. 

Unless I am mistaken, it can be clearly shown, 

That the original right of the Cherokees, confirmed and guaranteed 
by so many treaties, was not, and could not be, affected by the compact 
*>f 1802, between Georgia and the United States : 

That Georgia so understood the matter, for a quarter of a century 
after the year 1802, as appears by numerous acts of her legislature : 

That the proposed plan for removing the Indians is visionary, and de- 
rives no support from experience : 

That the proposed guaranty of a new country would not be entitled 
to confidence ; and that the offer of a guaranty, in present circum- 
stances, would be esteemed by the Cherokees a cruel insult : 

That the actual removal of the southwestern tribes, would, in all pro- 
bability, be followed by great evils to them, without any corresponding 
benefit to them, or to others ; and 

That a conscientious man will be very cautious how he advises the 
Indians to yield their unquestionable rights, and to commit all their inte- 
rests to the issue of a mere theoretical experiment, which, to say the 
least, is very likely to fail, and for the failure of which there can be nei- 
ther remedy nor indemnity. 

It has appeared, that the colony of Georgia, (with the cognizance of 
the British government,) and the State of Georgia, in the days of her 
youthful independence, negotiated with the Creeks and Cherokees on 
the undisputed basis, that these Indians were nations ; that they had 
territorial and personal rights ; that their territory was in remain in their 
possession, till they should voluntarily surrender it ; and that treaties 
with them are as truly binding, as treaties are between any communities 
whatever. Such is the aspect of all the transactions, in relation to this 
subject; and no candid reader of history can avoid these conclusions. 
Seven formal treaties, all possessing these general characteristics, have 
been already mentioned. The last of them was dated in the year 1783, 
just fifty years from the first settlement of the colony. It is probable, 
that, within this period, many subordinate negotiations were held. 

The treaty of Galphinton was formed in the year 1 785, and is not 
(infrequently referred to. The next year, a treaty of peace was made 



70 



between Georgia and the Creeks. I have not been able to find these 
two documents, nor to ascertain the provisions which they contain. 
Quotations made from them on the floor of Congress by a representa- 
tive of Georgia, leave no room to doubt, that they are of the same gene- 
ral character, as the treaties which preceded them. 

In 1787 the federal constitution was formed, by which the power of 
making treaties was conferred on the President and Senate of the Unit- 
ed States. As this was a subject of great importance, the framers 
of the constitution not only took care (Art. III. section 2) to assign the 
treaty-making power of the general government, but to inhibit (Art. I. 
section 10) the several States from entering into " any treaty, alliance, 
or confederation." Since the constitution was adopted, no State has 
negotiated with Indians. All public measures respecting them have 
fallen within the scope of the powers vested in the general govern- 
ment. 

Georgia, in her character of a sovereign and independent State, 
adopted the constitution, and thus became a member of the Union. 
She must be bound, therefore, by all acts of the President and Senate, 
which are performed by virtue of powers conferred in the constitution. 
Very recently, some of her public men have asserted, that the United 
States have neither the power to make treaties with Indians, nor to cede 
any part of the territory of a State. 

The power to make treaties with Indians is denied on the ground, 
that treaties can be made with nations only ; and that communities of 
Indians are not nations. Unfortunately for this theory, it was notori- 
ously invented to answer a particular purpose. It is not, and cannot be, 
entitled to the least degree of credit. Communities of Indians have 
been called nations, in every book of travels, geography, and history, in 
which they have been mentioned at all, from the discovery of America 
to the present day. Treaties have been made with them, (uniformly 
under the name of treaties,) during this whole period. The monarchs 
of Europe, and the colonies of Europeans, were perpetually making 
treaties with Indians, in the course of the 17th and 18th centuries. The 
colony of Georgia always spoke of the Creek and Cherokee nations ; 
and the compacts, which she made with them, she called treaties. The 
framers of the constitution must be supposed to have used language 
in its ordinary acceptation. When the constitution speaks of a treaty, 
it certainly embraces every sort of compact, which the universal voice 
of mankind had designated by that name. 

It would seem, according to the present doctrine of Georgia politi- 
cians, that civilized people may be called nations and can make 
treaties ; but uncivilized people are to be called savages, and public 
engagements with them are to be denominated what such engage- 
ments are to be denominated, we are not as yet informed. There 
must be a new code of national law, and a new set of writers upon it, 
in order to help Georgia out of her present imagined difficulties — I 
say imagined, because there is no real difficulty ; not the slightest. 
What are the distinctive marks of a civilized people, and who is to 
decide whether these marks are found in a given case, are matters 
unexplained. Nor are we told in what respects treaties between 



71 



civilized nations are to be interpreted differently from public engage- 
ments with an uncivilized people. 

A representative from Georgia said in his place last winter, that 
these " agreements with the Indians had improperly been called treaties." 
(Let it be borne in mind, that Georgia herself always called them trea- 
ties.) In a subsequent part of his speech, he spoke of the " bad faith" 
of the Creeks, in not observing the stipulations, which they had made 
in these " agreements ;" and to this alleged bad faith, he gave the ad- 
ditional hard names of "fraud and perfidy." We may gather, there- 
fore, the conclusion, that savages are bound by their agreements, though 
these agreements must not be called treaties. It is contended, however, 
that the United States are not bound by their agreements with the Che- 
rokees, because the United States cannot, in their federal capacity, 
make agreements with savages, although the general government has 
the exclusive power of making treaties with civilized nations : the whole 
of which philosophy and logic, when thoroughly digested and concocted, 
amounts to this ;— that treaties between civilized nations bind both the 
parties ; but that agreements with savage tribes, while they bind the- 
savages, on the penalty of extermination, to observe every one of their 
engagements, leave civilized parties to break every one of their engage- 
ments, or "agreements," whenever it suits their pleasure, or their inter- 
est, to do so. This is the morality to be incorporated into the new 
code of national law, with another section declaring, that all parties to 
an agreement, even though it be called a treaty, have the perfect right 
to decide whether they are themselves civilized, or not, and whether 
other parties are uncivilized or not. 

It is by no means favorable to this theory, that Washington, Hamil- 
ton, and Jefferson had the temerity, (following the uninterrupted cur- 
rent of example and authority, which had come down from the discovery 
of America,) to treat with Indians as nations, and to consider engage- 
ments with them as being treaties, within the meaning of the constitu- 
tion. From the origin of our general government to the present day, 
every President of the United States, not excepting the present incum- 
bent, has used the words treaty and nation, in precisely the same man- 
ner ; and every Senate has confirmed the universal use. 

Besides, the President and Senate must decide, from the nature of 
the case, what is a treaty, and what is not. Even the Supreme Court 
cannot pronounce a document not to be a treaty, which the President 
and Senate have pronounced to be one ; for the constitution expressly 
declares treaties to be " the supreme law of the land, and the judges, 
in every State, to be bound thereby." If treaties are the supreme 
law, they cannot surely be pronounced null and void by any judicial tri- 
bunal. 

Again, if the President and Senate should be justly chargeable with 
a mistake, in extending the treaty-making power to a subject, to which 
it was not properly applicable ; and if the Supreme Court might de- 
cide, that a certain document, purporting to be a treaty, is only an 
agreement between the President and Senate of the United States and 
another, party, although both parties had long understood it to be a 
treaty, and had observed it as such ; — in such a case, what would honor 



72 



and justice require ? Should the people of the United States take ad- 
vantage of a blunder made by their highest functionaries, and long ae~ 
quiesced in ? especially if the other party had reposed entire confidence 
in the validity of the proceeding, and had made important sacrifices in 
fulfilling his stipulations ? 

Suppose, for instance, that an agent of the United States had bought 
ships of Mr. Girard, for public purposes, to the amount of $100,000, 
and the contract had been sent to the Senate and ratified as a treaty. 
Here would have been a great blunder, no doubt ; but is Mr. Girard to 
suffer by it ? When he applies for payment, is he to be told, that the 
contract with him has improperly been called a treaty ; that the Presi- 
dent and Senate have no power to make treaties on such subjects ; and 
that, therefore, he cannot be paid for his ships ? Mr. Girard would be 
not a little amazed at this ; and might naturally enough exclaim, that, 
in all his intercourse with mankind, he had never before met with so 
impudent, and so foolish, an attempt to cheat. As he grew cooler, he 
might say : " You have had my ships, and sent them to sea. You en- 
gaged to pay me for them. If you called the contract a treaty, the 
name is one of your own choosing. Nor had I any thing to do with 
sending it to the Senate. I sold my ships to an authorized agent of the 
government, and he engaged that I should be paid for them. If the 
transaction is not a treaty, it is at least a fair bargain ; and that is 
enough for me. I expect honest men, whether public or private, wil- 
lingly to execute their bargains ; and, as to dishonest men, I shall do all 
in my power to hold them to their bargains, whether they are willing, or 
not." 

So the Cherokees may plead, that it was not for them to judge, as to 
the extent of the treaty-making power. They made an agreement with 
men, who represented their Father, the President. They supposed the 
President to know the extent of his own powers. At any rate, they re- 
linquished land, and gave up many advantages, for the sake of a solemn 
guaranty in return. If the agreement which they made, was not a trea- 
ty, it was an obligatory contract ; and they have a right to expect, and 
to demand, that the contract shall be fulfilled. 

The politicians of Georgia contend, that, even if the United States 
have power to make treaties with Indians, still, they have no power to 
cede away the territory of a State. This objection cannot be support- 
ed, in any sense. But it is plausible ; and the whole plausibility rests 
in a mere sophism. The United States have never ceded, nor attempted 
to cede, any part of the territory of Georgia. They simply guaranteed 
to the Indians their original title ; or, in other words, the United States 
solemnly engaged to the Indians, that no human power should deprive 
them of their hereditary possessions, without their own consent. This 
was no encroachment upon the rights of Georgia ; nor did it relate at 
all to the territory of Georgia ; which territory embraced those lands 
only, that had been previously obtained from the Indians. If the treaty 
of Holston were an encroachment upon the rights of Georgia, why was 
no complaint made at the time ? The senators from Georgia were in 
their seats ; and the citizens of Georgia were never charged, I believe, 
with passively surrendering their rights. Why, then, was no complaint 
made for more than thirty-five years ? 



73 



But it is perfectly clear, that the United States may cede the territory 
of any State in the Union by treaty. Such an event may be very impro- 
bable ; I care not if you say it is morally impossible, that the President 
and Senate should ever cede any part of what is really, and truly, the 
territory of a State. Yet, if such an event should take place, the trans- 
action would not be void for want of constitutional power. The gene- 
ral government has the power to make treaties without limitation. Of 
course, treaties may be made by the United States, on all subjects 
which are frequently found in treaties of other nations. But there is 
scarcely a more common subject of treaties, in every part of the world, 
than a cession of territory. How are foreign nations to know the ex- 
tent of our treaty-making power ? If our President, and two-thirds of 
our Senators, will cede any part of our territory, there is no help for it. 
Our security lies, not in their want of power to do this ; but in their 
want of inclination. 

If the United States had ceded to England, all that part of the State 
of Maine, which was in possession of the British forces at the close of 
the last war, how can it be pretended that the treaty would not be bind- 
ing ? Indeed, at this very moment, there is a dispute about the boun- 
daries of Maine. If the king of the Netherlands should egregiously 
mistake, in deciding the question now referred to him, which I admit to 
be very improbable ; — still, if he should mistake, the State of Maine 
will lose 7,000,000 acres of land ; and all this will be lost by the ope- 
ration of the treaty of Ghent. 

Proud nations have often been mortified, by being obliged to cede 
some part of their territory. It is not probable that our mortifications 
will come from that qnarter. We have, however, not a few permanent 
causes of severe mortification. If it should be said, five hundred years 
hence, that in the middle of the nineteenth century the United States 
were compelled, by an overwhelming force, to cede Staten Island to a 
foreign power, the fact would not be a thousanth part so disgraceful, as 
to have it truly said, that the United States adopted from Georgia, the 
maxim, that power is right ;* and, in pursuance of that maxim, de- 
spoiled an unoffending and suffering people, of those very possessions, 

Which WE HAD SOLEMNLY GUARANTEED TO THEM FOREVER. 



No. XX. 

Controversy respecting unappropriated lands — Compact of 1802 — The United 
States charged with a failure to execute the compact — The Indians not bound 
by a compact between third parties — Disappointed expectations of Georgia — ■ 
The word peaceably as much binding- upon Georgia, as upon the United States 
— The public measures of Georgia, till lately, in accordance with the compact — • 
Proclamation of Governor Troup — His opinion of the sacredness of treaties. 

From the preceding investigation, it is manifest, that the Cherokees 
can plead against the claims of Georgia, not only that best of all titles, 

* The legislature of Georgia adopted this maxim, in nearly these words, as I 
shall show in a quotation from a report, approved by that body, in December, 
1827. 

10 



74 



immemorial occupancy, fortified as it is by the solemn guaranty of the 
United States, in which guaranty the faith of Georgia is pledged with 
that of every other State in the Union ; but they can plead, also, the re- 
peated and solemn acts of Georgia herself, as an independent State, — 
acts, which stand forth as most convincing proof, that the national cha- 
racter of the Indians was acknowledged by that State, and their rights 
of territory regarded as indisputable. 

It is contended, however, that the United States are bound to extin- 
guish the Indian title to all lands, which are now claimed as belonging 
to Georgia. This obligation is supposed to be derived from the com- 
pact of 1802. 

In one of my previous numbers it was mentioned, that a controversy 
existed, at the close of the revolutionary war, in regard to the question, 
whether the United States in their federative capacity, or the several 
States, in their independent character, had the most equitable claim to 
lands, which had never been settled by whites, and which lay within the 
chartered limits of the States respectively. This claim, as preferred by 
either party, was merely the right of purchasing lands of the Indians, to 
the exclusion of all other purchasers except the claimants, with the right 
of jurisdiction over the territory, after it should have been thus pur- 
chased. If, however, there were any lands, which had never come into 
the actual possession of whites, and which did not belong to any nation 
of Indians, such lands would be, in the strictest sense, unappropriated, 
and the possession of them and jurisdiction over them might properly 
be assumed without delay, by the United States, or the several States, 
accordingly as the claim should be settled between these parties. 

I have nothing to say of the merits of this controversy. As between 
the United States and Georgia, it was settled by the compact of 1802, 
which I will now describe. 

James Madison, Albert Gallatin, and Levi Lincoln, commissioners of 
the United States, and James Jackson, Abraham Baldwin, and John 
Milledge, commissioners of Georgia, executed "a deed of articles and 
mutual cession," April 24, 1802, of which the following provisions are 
all that are material to the present inquiry. 

The State of Georgia cedes to the United States " all the right, title, and claim, 
which the said state has to the jurisdiction and soil of the lands," which now ap- 
pear on the map as the States of Alabama and Mississippi. 

The United States engage to pay Georgia $1,250,000, from the first net pro- 
ceeds of said lands, " as a consideration for the expenses incurred by the said 
State, in relation to the said territory." 

" The United States shall, at their own expense, extinguish, for the use of 
Georgia, as early as the same can be peaceably obtained, on reasonable terms, the 
Indian title to the county of Talassee," &c. &c. " and the United States shall, in 
the same manner, also extinguish the Indian title to all the other lands within the 
State of Georgia." 

The United States cedes to Georgia " whatever claim, right, or title, they may 
have to the jurisdiction or soil of any lands," which are within the chartered lim- 
its of Georgia, and east of the present line between Alabama and Georgia. 

The great outlines of this compact are, 

1. The parties agree upon a division of claims, which they had both 
made to the same lands. 

2. The United States give Georgia a sum of money, not as the price 



75 



of lands, nor as the price of claims to land, but " as a consideration for 
expenses incurred" by Georgia, " in relation to said territory." 

3. The United States engage to extinguish the Indian title to lands 
within certain limits, " as early as the same can be peaceably obtained, 
on reasonable terms." 

Georgia now complains, that the United States have failed to fulfil 
this compact. But in what does the failure consist ? The money has 
been paid. The Indian title to three quarters of the lands, which be- 
longed to the Indians in 1802, within the intended limits, has been ex- 
tinguished by the United States, in the manner prescribed ; and Geor- 
gia is now in actual possession. The remaining quarter has been re- 
peatedly applied for ; and the United States have always stood ready 
to purchase it of the rightful owners, " on reasonable terms." At least, 
this has been repeatedly and officially declared to be the fact, by public 
functionaries of the United States. But if Georgia can convict our na- 
tional authorities of culpable negligence in this respect, let her claim a 
fair indemnity. In order to a conviction, however, something more 
than mere assertion will be necessary. The evidence of neglect must be 
produced. Tt seems to be morally certain, whether the United States 
shall be able to vindicate themselves or not, that the remaining lands of 
the Cherokees cannot be " peaceably obtained" of the rightful owners ; 
and if any indemnity is really due to Georgia, let her receive it. 

The reader will not fail to see, that the Creeks and Cherokees could 
not be in any manner affected, as to their rights of soil and jurisdic- 
tion, by a compact, to which they never consented, and in the forma- 
tion of which they had no agency. If A. covenants with B. for a 
valuable consideration, that he will purchase the farm of C, as soon as 
he can obtain it lawfully, and at a reasonable price, this is a good con- 
tract, and will remain binding on A., till he discharges himself from 
it. But it would be absurd to say that C. is bound by such a contract. 
He may refuse to sell his farm on any terms ; or he may ask an un- 
reasonable price for it. In either case, so long as A. stands ready to 
purchase, at a reasonable price, he cannot be charged with a breach 
of contract. If he has been culpably negligent, by not taking suitable 
pains, or making reasonable offers, B. can doubtless claim an indem- 
nity. It would be rather a hard measure upon C, however, to turn 
him out of his house, and drive him from his farm, merely because he 
refused to sell his possessions. Such an administration of law would 
not be much admired, except perhaps in the court of Ahab and Jeze- 
bel. 

Nor would it alter the case, if A. and B., at the time of making the 
contract, expected that C. would sell his farm, at the first reasonable 
offer. There might be strong indications, that C. would become an 
intemperate man, a spendthrift, a sot, a vagrant, and that his farm 
would speedily pass into other hands : and yet these indications might 
prove fallacious. C. might become a thrifty husbandman, keep his 
farm clear of debt, and leave it unincumbered to his heirs. And is he 
to be blamed, because he turned out to be an industrious man, and 
thus disappointed the unfavourable prognostications of B., who stood 
looking upon the farm with covetous eyes ? 

Georgia says, that she expected the United States would have long 



76 



since extinguished the title to all the Indian land3, which she claims. 
Very well. What if she did ? The history of every man, and of every 
community, is full of disappointed expectations. In the spring of 
1818, the planters of Georgia expected to get thirty cents a pound for 
cotton, in many subsequent years ; and they made their purchases of 
land and slaves in that expectation ; but they are now glad to get ten 
cents a pound. This disappointment is a hundred times more felt by 
each man individually, than the failure to get lawful possession of a tract 
of indifferent land, in the remotest corner of the state. 

The terms of the compact between the United States and Georgia 
save the rights of the Indians, and were manifestly intended to save 
them. But if the United States had agreed to take forcible possession 
of the Indian country, and to put Georgia in possession, such an agree- 
ment would be absolutely void, for several reasons. First, it would be 
palpably and monstrously unjust. Secondly, it would be in opposition 
to previously existing treaties, between the United States and the Indians, 
which treaties were the supreme law of the land. Thirdly, it would be 
in opposition to treaties between Georgia and the Indians, — treaties 
never abrogated nor annulled, — and therefore Georgia could not insist 
upon its execution. 

There is not a more established maxim of English law than this ; 
viz. that unlawful contracts are not binding. If, for instance, A. 
covenants with B. in consideration of a thousand dollars, that he will 
compel C, by threats, duress, or false imprisonment, to sign a deed of 
land ; and B. should undertake to enforce the covenant in a court of 
justice, it is probable that both the parties would find themselves in a 
penitentiary, much sooner than in possession of C.'s land. 

It is clear, then, that the United States could not be bound, by the 
compact of 1802, however that instrument might be understood or 
construed, to do more than purchase the lands of the Cherokees, within 
the prescribed limits, whenever the rightful owners should be willing 
to sell. 

But this is not all. A fair interpretation of the compact binds 
Georgia to the same course of proceeding, which had previously been 
pursued, for the acquisition of Indian lands. This course was per- 
fectly well known to both parties. It was always through the medium 
of the treaty-making power. 

The compact says, that the United States shall extinguish the In- 
dian title. The Indians had a title, it would seem ; and a title of such 
a kind, as would require the agency of the United States before it 
could} be extinguished. It would not expire of itself ; it would not 
vanish before the march of civilization ; but the immense power of the 
general government must be brought to bear upon it. Even this power 
might fail ; and hence the provision, that the United States should not 
be bound to do what was impossible, or unreasonable. At that time, 
it would doubtless have been thought morally impossible for our general 
government to break plain, positive treaties ; or to take forcible pos- 
session of lands in the peaceable occupancy of Indians, even though 
these lands were not protected by treaty. The title was to be extin- 
guished peaceably, and on reasonable terms. The law of the strongest 
was not to be relied on. All the parties were to sustain the character 



11 



of reasonable beings. There was to be a consent of terms, a union of 
minds, and not an appeal to the sword. This part of the compact is as 
truly obligatory, as any other part ; and as truly obligatory upon Geor- 
gia, as upon the United States. 

It was stipulated by the commissioners, that the compact should be 
binding, if the assent of the legislature of Georgia should be given 
within six months from the date ; provided, that Congress should not, 
within the same period, repeal the act, by virtue of which the agree- 
ment had been made. The legislature of Georgia assented to the com- 
pact, and Congress did not repeal the act. The compact therefore 
took effect. 

The enacting clause, by which Georgia ratified the compact, is in the 
the following words, which ought to be very diligently considered by the 
leading men of that state : viz. 

" Be it enacted by the senate and house of representatives of the State of Georgia, 
in general assembly met, and by the authority thereof, That the said deed, or articles 
of agreement and cession be, and the same hereby is and are fully, substantially, 
and amply ratified and confirmed in all its parts ; and hereby is and are declared 
to be binding and conclusive on the said State, her government and citizens, forever." 

Now let it be remembered, that the state of Georgia, fully aware 
that the treaty-making power was vested exclusively in the general 
government ; knowing in what manner that power had been exercised 
for thirteen years; that no less than eight treaties had previously been 
made by the general government with Indian nations, residing within 
the chartered limits of Georgia ; that most of these treaties contained 
cessions of land, and established boundaries of territory, with solemn 
guaranties ; that there was no way of extinguishing the Indian title, 
except by treaty ; — the legislature of Georgia, knowing all these things, 
solemnly ratified the compact, in accordance with which the United 
States only could extinguish the Indian title, and this could be done 
only in a peaceable manner. The compact containing these provisions 
was ratified, " in all its parts" and declared to be binding on the 
"State, her government and citizens, forever." 

With what shadow of reason, then, can it be pretended, that Geor- 
gia has a right to extinguish the Indian title herself, without waiting 
for the interposition of the general government ; or that the Cherokees 
have no title to be extinguished, being merely tenants at will, or tenants 
by sufferance ? When the politicians of Georgia stretch out their 
grasping hands to seize the property of unoffending Cherokees, let 
this word forever, the closing word of a solemn act of legislation, ring 
in their ears, till they shrink back from oppression, and betake them- 
selves to that course of equity, which is prescribed in the compact, thus 
solemnly ratified and sanctioned. 

The public measures of Georgia, in relation to the Indians, have all, 
till recently, been conformed to the principles of this compact of 1 802. 
It is not quite five years since the spurious treaty of the Indian Spring 
was made ; a treaty, which the highest authorities of our nation set 
aside for manifest fraud. The proclamations and reasonings of the 
Governor of Georgia, in regard to the effect of this treaty, (on the as- 
sumption that it was valid,) are, in the main, correct and proper. 



78 



The treaty was made February 12, 1825. On the 22d of March fol- 
lowing, Governor Troup issued a proclamation, which commences thus : 
" Whereas, by a treaty concluded with the Creeks, foe. their claims to 
the whole territory within the limits of Georgia, were ceded to the 
United States, &c. by which act the territory aforesaid, according to 
the stipulations of the treaty and of the articles of agreement and cession 
of 1802, will, on or before the first day of September, 1826, pass into 
the actual possession of the State of Georgia :" &,c. 

In this preamble, some of the principal doctrines, for which T have 
been contending, are plainly acknowledged or implied. The lands are 
here admitted to have been ceded to the United States by a treaty ; and 
it is declared that they will pass into the actual possession of Georgia, 
eighteen months after the date of the proclamation ; not because Geor- 
gia, as a sovereign and independent State, had a paramount title to 
them, nor because it was found written in the laws of nations that these 
lands belonged to Georgia ; but because the stipulations of the treaty 
and the compact of 1802, so required. 

This is an honest and accurate account of the matter. The United 
States had purchased lands of the Indians. These lands, when pur- 
chased, and after the time for the Creeks to remove from them should 
have arrived, would " pass into the actual possession of Georgia ," for 
this very good reason : viz. the United States had covenanted, that as 
soon as lands, within certain limits, could be peaceably obtained, they 
should be thus obtained, "for the use of Georgia." 

In the same proclamation, Governor Troup warns " all persons, citi- 
zens of Georgia or others, against trespassing, or intruding upon, lands 
occupied by the Indians, within the limits of this State, [that is, the lands 
described in the treaty,] either for the purpose of settlement, or otherwise, 
as every such act will be in direct violation of the provisions of the treaty 
aforesaid, and will expose the aggressors to the most certain and summary 
punishment by the authorities of the State and of the United States." 

The treaty prescribed, that the Creeks should remove before Septem- 
ber of the next year, till which time they were to retain unmolested pos- 
session of their country. But some of t he citizens of G eorgia might feel 
inclined to take possession earlier. Such a measure the Governor warns 
them against ; assuring them, that it would be a direct violation of the 
treaty, and would bring upon the trespassers and intruders certain and 
summary punishment ; and this punishment would fall upon citizens of 
Georgia, as well as others, if they should expose themselves to it. Now, 
as the treaty of the Indian Spring w r as justly considered by Governor 
Troup as a sufficient barrier to protect the Creeks in the possession of 
their country, till the time fixed in the' treaty for their removal, why are 
not the treaty of Holston, with its solemn guaranty, (1791,) and the 
first treaty of Tellico, with its repeated guaranty, (1798,) and the 
treaty of General Jackson, with its recognition of previous treaties, 
(1817,) — why are not all these compacts a sufficient protection of the 
Cherokees " against all persons," to use the language of the proclama- 
tion, " citizens of Georgia, or others, trespassing or intruding upon the 
lands occupied by the Indians ?" 

We may safely gather from the passages here quoted, and the one 
which is to follow, that Governor Troup found no difficulty in under- 



79 



standing the treaty ; that its provisions were, in his opinion, to be rigidly 
observed ; and that ample powers were in the possession of the public 
authorities of the United States for punishing " aggressors." 

The proclamation continues thus : " All good citizens, therefore, 
pursuing the dictates of good faith, will unite in enforcing the obligations 
of the treaty as the supreme law, aiding and assisting, &c. &c. and all 
officers, civil and military, are commanded to be vigilant in preventing 
offences under it, and in detecting and punishing offenders." 

In the principles here assumed and enforced I heartily concur. The 
Governor, who issued his proclamation, is now a member of the Senate 
of the United States : where he will have the best opportunity to pur- 
sue the dictates of good faith, and to assert the obligations of treaties as 
the supreme law. Most gladly shall I see him engage in a work, which 
so well becomes a Senator of our great republic ; and, should he thus 
engage, he may be encouraged with the thought, that his efforts will not 
be unsuccessful. 



No. XXI. 

Gov. Troup's opinion of the effect of treaties — Soil and jurisdiction go together 
— The Cherokees cannot be secured in the possession of their lands, if they 
come under the laws of the States — Reasoning of Messrs. Campbell and Meri- 
wether — Select Committee of Congress — Laws of Georgia — Decisions of the 
Supreme Court — These decisions a defence of the Cherokees. 

It is at the present moment a favorite doctrine of Georgia, that the 
right of soil in the Indian country and of sovereignty over it, is vested 
in that State; and has been thus vested, ever since the peace of 1783. 
As a consequence of this assumed right, the Senate of Georgia openly 
declared, in December, 1827, that the State might properly take posses- 
sion of the Cherokee country by force ; and that it was owing to her 
moderation and forbearance that she did not thus take possession. 

But Governor Troup appears to have been of a different opinion. In 
his letter to the Secretary of War, dated June 3, 1825, speaking of the 
treaty, by which he supposed the territory of the Creeks had been ceded, 
(in which supposition he would have been correct, if the treaty had not 
been spurious,) he says : " By the treaty of the Indian Spring, the In- 
dian claims are extinguished forever. The article is worded in the 
present tense. On the instant of ratification, the title and jurisdiction 
became absolute in Georgia," 

Now I humbly conceive, that if the title and jurisdiction became abso- 
lute in Georgia, as a consequence of the treaty, the inference is inevita- 
ble, that neither the title, nor the jurisdiction, was absolute before that 
event; and if the Indian claims were extinguished by the treaty, there 
must have been claims in existence, previously to that treaty, capable of 
being extinguished by it. The Cherokees are now in the same condition, 
as to title and claims, as the Creeks were, before the treaty of the In- 
dian Spring ; therefore the Cherokees have, at the present time, on the 
authority of Governor Troup, claims yet to be extinguished by treaty, 



80 



and neither the title, nor the jurisdiction, of the Cherokee country, has 
yet become absolute in Georgia. 

Proceeding in his argument, as to the effect of the treaty, Governor 
Troup says : " Soil and jurisdiction go together ; and if we have not the 
right of both, at this moment, we can never have either by better title. 
If the absolute property, and the absolute jurisdiction have not passed to 
us, when are they to come ? Will you make a formal concession of the 
latter ? When and how ? If the jurisdiction be separated from the pro- 
perty, show the reservation which separates it : 'tis impossible." 

The design of this argument was to prove to the general government, 
that Georgia might properly survey the newly acquired lands immedi- 
ately; though the Creeks were not obliged to remove till September 
1826. The argument is this : By the treaty, the right of soil became 
absolute in Georgia, and the right of jurisdiction accompanied the right 
of soil ; therefore Georgia might immediately exercise the power of sur- 
veying the lands. Without giving any opinion as to the conclusiveness 
of the Governor's reasoning, it is evident, (and for this purpose I have 
cited the passage,) that he considered the title as having passed by means 
of the treaty. Consequently, the title, both in respect to jurisdiction 
and soil, w T as previously in the Creeks, and not in Georgia ; and, of 
course, the title to the Cherokee country, both in respect to soil and 
jurisdiction, is now in the Cherokees, and not in Georgia. 

I entirely agree with the Governor, that the soil and jurisdiction go 
together. The letter of the President of the United States to the Che- 
rokees, by which they were assured that they should retain possession of 
their lands, though they should come under the laws of Georgia, must 
have been founded altogether in mistake. Where is the power in the 
general government to secure individual Cherokees in the possession of 
their lands, after the Cherokee community shall have ceased to exist, 
and the individuals of which it was composed shall have come under the 
dominion of four or five different States ? The Senate of Georgia has de- 
clared, that the Cherokees, as individuals, will not be suffered to retain 
more than a sixth part of the land, which is now in the possession of the 
Cherokee community, within the chartered limits of Georgia. And as to 
that sixth part, how could the President of the United States secure the 
individuals in the possession of it, or guard against the effect of State 
laws, which might be designed to operate in such a manner, as should 
speedily deprive the Indians of what little property they now possess ? 

In the written communication of Messrs. Campbell and Meriwether, 
eminent citizens of Georgia, acting as commissioners of the United 
States, and being exceedingly desirous to obtain a cession of the Che- 
rokee country for the use of Georgia, these negotiators, in the year 
1823, say to the Cherokee nation, 44 The sovereignty of the country 
which you occupy is in the United States alone. No State, or foreign 
power, can enter into a treaty or compact with you. These privileges 
have passed away ; and your intercourse is restricted exclusively to the 
United States." 

The doctrine is here plainly asserted, that the general government only 
could treat with the Indians ; and that separate States were as really 
excluded from such an agency, as foreign nations were. This exclusive 
right of treating, which the commissioners call sovereignty, was not an 



81 



encroachment upon the natural rights of the Indians, it being a matter of 
express and positive stipulation with them, perfectly understood by 
them, and operating for their protection. 

A Select Committee of the House of Representatives, in a Report 
made to Congress, March 3, 1827, cite a passage from a letter, ad- 
dressed, by the Senators and Representatives in Congress from Geor- 
gia, to the Secretary of War, dated March 10, 1824; in which the 
writers are understood to say, that the Cherokees are " to be viewed 
as other Indians, as persons suffered to reside within the territorial 
limits of the United States, [that is, the limits of the peace of 1783,] 
and subject to every restraint, which the policy and power of the general 
government require to be imposed on them, for the interest of the Union, 
the interest of a particular State, and their own preservation." 

Here it is implied, that whatever restraint is imposed upon the In- 
dians, must be imposed by the general government, as well when " the 
interest of a particular State" is concerned, as when " the interest of 
the Union" is to be affected. This is certainly the only rational con- 
struction, which can be given to the whole history of our intercourse 
with the Indians, since the adoption of the federal constitution. 

But there is one more source of evidence on this subject, which is 
of a still more striking character, and which should set the question at 
rest, even in the minds of the people of Georgia. It is the constant 
admission, on the part of that State, in her most solemn acts of legis- 
lation, that the Indian lands within her chartered limits, are acquired 
for her use, through the medium of the treaty-making power, which is 
vested exclusively in the United States. This is manifest in the very 
titles of her laws, as well as in the enactments. 

The statute book of Georgia contains an act, which was approved by 
Gov. Troup, June 9, 1825, of which the following is the title : viz. 

" An act to dispose of and distribute the lands lately acquired by the United 
States for the use of Georgia, of the Creek nation of Indians, by a treaty made 
and concluded at the Indian Spring, on the 12th of February, 1825." 

In the first section it is enacted, " That the territory acquired of the Creek na- 
tion of Indians, by the United States, for the use of Georgia, as described in arti- 
cles of a treaty entered into and concluded between commissioners on the part of 
the United States, and the chiefs, head men, and warriors of the Creek nation of 
Indians," &c. 

This is a perfectly fair statement of the case. If the territory was 
lately acquired of the Creek nation, it manifestly belonged to the Creek 
nation before it was thus acquired ; and if the territory belonged to the 
Creeks, it was plainly under their jurisdiction ; for, as Gov. Troup 
said, in his letter above quoted, which was written only six days before 
signing this act, " soil and jurisdiction go together." If it was acquir- 
ed by the United States, this was done because, under the federal con- 
stitution, as it has been uniformly administered, the United States have 
the exclusive power of extinguishing Indian title. If it was acquired 
by a treaty, it was because the Creeks, being a nation, could dispose of 
their common property by treaty only. If it was acquired for the use 
of Georgia, then Georgia had not the use previously ; but the United 
States had covenanted with Georgia, that they would obtain this title 
for her use, as soon as it could be obtained " peaceably" and " on rea- 
sonable terms." 

11 



82 



Abundant evidence might be adduced to prove that Georgia, till after 

this period, always admitted the exclusive power of acquiring the In- 
dian territory to be vested in the United States. But additional proof 
is unnecessary. The man who will not be convinced by the citations 
already made, must be beyond the reach of conviction. 

It has been said, that the Supreme Court of the United States has 
declared the jurisdiction of the Indian country to be in Georgia. But 
the decision of the Court, in the only two cases which I have seen 
quoted on this subject, does not touch the question of jurisdiction, or 
present title ; except that the Court throws cut some expressions, which 
were manifestly intended for the protection of the Indians in their right 
of occupancy ; that is, their right of possessing their own country, to 
the exclusion of the whites, without limitation of time. 

The Court decided, in the case of Fletcher and Peck, that the con- 
tingent interest of Georgia in the Indian territory was of such a nature, 
that it might be granted to individuals, and might not improperly be 
designated by the technical phrase of seisin in fee ; though this con- 
tingent interest was subject to the Indian title of occupancy, which 
1 title was certainly to be respected by all courts, until it should have 
been legitimately extinguished.' 6 Cranch, 142. 

In the case of Johnson and Mcintosh, the point decided was, that 
grants of land, by Indian chiefs to individuals among the whites, can- 
not be sustained by the courts of this country. The reason assigned 
is, that the rulers of the European nations, the legislatures of the colo- 
nies before the revolution, and of the several states, and the United 
States, since the revolution, have all asserted the exclusive right of the 
government to extinguish the Indian title. The court did not feel 
justified in going into the consideration of abstract principles. The 
question to be decided was a mixed question of national and municipal 
law, which had been settled by the practice of the governments of 
Europe and America, from the discovery of this continent to the pre- 
sent time. But the Court was very explicit in admitting the Indian 
title of occupancy. 

After stating, that the governments of Europe agreed among them- 
selves to respect the right of discovery as claimed by each, the court 
said : 

" The exclusion of all other European nations, necessarily gave to 
the nation making the discovery the sole right of acquiring the soil 
from the natives, and establishing settlements upon it." 8 Wheaton, 
p. 573. 

Again : " They [the original inhabitants] were admitted to be the 
rightful occupants of the soil, with a legal as well as just claim to retain 
possession of it, and to use it according to their own discretion." p. 
574. 

Yet, as the Indians could not sell to foreign nations, except to the 
discoverers and those claiming under them, (this being a matter of 
agreement among the European nations ;) and as they could not sell 
to private purchasers, (this being a matter of municipal law among the 
whites, and often of treaty stipulation between whites and Indians,) 
the natural rights of the Indians were impaired, or rather circumscribed 
or limited. There was nothing in this limitation, however, of the nature 



83 



of usurpation or encroachment. It was a matter of necessity, if per- 
petual collisions were to be avoided ; and a matter of mutual benefit to 
colonists from different nations ; and especially of benefit to the In- 
dians. What a scene of strife, enmity, fraud, and bloodshed, would 
have been exhibited, if English, French, and Spanish colonists had 
been permitted to make purchases of Indian lands from the same tribe, 
in the same neighborhood, and at the same time ? And what imposi- 
tions would have been practised upon Indians by white purchasers, if 
they had been allowed to make purchases of the natives, without any 
restraint from the government ? It is both absurd and cruel to con- 
strue this necessary limitation of the natural rights of the Indians, (a 
limitation which was necessary to the protection and security of all 
parties,) as a denial that the Indians have any rights at all. The 
court gives no sanction to such an absurdity. Besides the passages 
already quoted, are several others in accordance with the same prin- 
ciples. 

" It has never been contended," says the court, " that the Indian title 
amounted to nothing. Their right of possession has never been ques- 
tioned. The claim of government extends to the complete ultimate 
title, charged with the right of possession, and to the exclusive -power of 
acquiring that right." p. 603. 

The Indians have the right, then, of possessing their country, without 
limitation of time ; though they are restrained from selling their coun- 
try to any individuals, or any community, except the general govern- 
ment ; a restraint, which operates altogether in their favour. 

Again, the court says : " Such a right [the Indian title of occupancy] 
is no more incompatible with a seisen in fee, than a lease for years is, 
and might as effectually bar an ejectment." p. 592. 

I consider this passage as most decisively in favour of the right of the 
Cherokees to remain on their land, as long as they please. Most rea- 
ders of newspapers do not understand terms of law. I must be per- 
mitted, therefore, to attempt an illustration of what is, to a lawyer, per- 
fectly plain. 

If A. holds land to himself and his heirs forever, he is said to be 
seized in fee of that land. He may sell an estate, or interest, in the 
land to B. and his assignee, for a hundred or a thousand years, and yet 
he will himself remain seized in fee ; because, at the expiration of the 
hundred, or the thousand years, the land will come again to the pos- 
session of his heirs. During all this time, A. and his heirs are seized in 
fee, and B. and his assigns are tenants for years. Now a decision that 
Georgia is seized in fee of land within her chartered limits, which land 
is at present in the possession of the Cherokees, no more proves that the 
Cherokees are not the " righful occupants of the soil, with a legal as 
well as just claim to retain possession of it," than the fact that A. is 
seized in fee of land, of which B. has a good lease to him and his as- 
signs for a term of years, proves that A. may bring an ejectment against 
B. while the term is unexpired. As, in the latter case, A. and his heirs 
must wait till the hundred or the thousand years are expired, before they 
can claim possession ; so, in the case of the Cherokees, Georgia must 
wait, till they voluntarily dispose of their country, through the medium 
of the treaty-making power, and then Georgia may take the immediate 
possession. 



84 



There is, indeed, another possible alternative. If the Cherokees 
should make war upon the United States, they might then, by the laws 
of nations, be treated as a conquered people. In that case, their country 
would fall under the full sovereignty of the United States, and by virtue 
of the compact of 1802, that part of it, which is within the chartered li- 
mits of Georgia, would immediately come into the actual possession 
of Georgia. But so long as the Cherokees act in a peaceable manner, 
it would be barbarous in the extreme to treat them as a conquered 
people. I speak without any reference to treaties, and on the supposi- 
tion that we were bound only by the common obligations of justice and 
humanity. 

It is to be observed, that the court said nothing, in either pf these 
cases, as to the effect or application of treaties. What was said on the 
subject of the rightful occupancy of the Indians, had respect to the naked 
claims of peaceable Indians, who remained upon the lands of their 
fathers. How much stronger the case of the Cherokees now is, de- 
fended as they are by so many solemn stipulations, must be apparent to 
every candid mind. 



No. XXII. 

Report of a joint committee of the legislature of Georgia — Reasoning and moral- 
ity of the Report — Lands not held against the Indians by discovery alone- 
Flagitious immorality cannot be legalized — Instance of the slave trade — Law 
of Georgia, Dec. 20, 1828 — Remarks upon it — Who are the persons thus reduc- 
ed to slavery ? — and by whom ? 

In a quotation, w T hich my last number contained, from a decision of 
the Supreme Court of the United States, it is said, " That the Indian 
right of possession has never been questioned ;" and that " it has never 
been contended that their title amounted to nothing." This dicision 
was pronounced in 1823. Since that time the politicians of Georgia 
have strenuously contended, that the Indian title amounts to nothing. 

In a Report of the Joint Committee of the Legislature of Georgia, 
whieh was approved by the Senate of that State, December 27, 1827, 
are found such passages as the following : 

The Committee say, that European nations " asserted succesfully the right of 
occupying such parts" of America, " as each discovered, and thereby they esta- 
blished their supreme command over it." 

Again ■ " It may be contended, with much plausibility, that there is, in these 
claims, more of force .than of justice; but they are claims, which have been re- 
cognized and admitted, by the whole civilized world ; and it is unquestionably 
true, that, under such circumstances, force becomes right" 

The committee suppose that " every foot of land in the United States is held" 
by the same title. 

The Committee say, that it is contended, that, by the compact of 1802, a consi- 
deration was contemplated to be paid by the United States to the Indians, for their 
relinquishment of this title; aud therefore that it was of such a character as was 
entitled to respect, and as could not be taken from them unless by their consent." 
The Committee add, " But we are of a different opinion." 

M Before Georgia became a party to the articles of agreement and cession, [the 



85 



compact of 1802] she could rightfully have possessed herself of those lands, either 
by negotiation with the Indians, or by force; and she had determined, in one of 
the two ways, to do so : but by this contract she made it the duty of the United 
States to sustain the expense of obtaining for her the possession, provided it could 
be done upon reasonable terms, and by negotiation ; but in case it should be ne- 
cessary to resort to force, this contract with the United States makes no provision : 
the consequence is, that Georgia is left untrammelled, and at full liberty to pro- 
secute her rights in that point of view, according to her own discretion, and as 
though no such contract had been made." 

The Committee give it as their opinion, " that the right of soil and sovereignty 
was perfect in G reat Britain ; that the possession of the Indians was permissive ; 
that they were under the protection of that government ; that their title was tem- 
porary ; that they were mere tenants at will ; and that such tenancy might have 
been determined at any moment, either by negotiation or force, at the pleasure of 
Great Britain." 

The words printed in italics are thus distinguished by the Committee. 

It might be difficult to tell which is most remarkable, the reasoning 
or the morality of these extracts. 

The Committee argue, that, as there is no provision in the compact 
of 1802, by virtue of which the United States are bound to use force 
upon the Indians, it follows, that Georgia has a right to apply force, 
whenever she pleases. This is one specimen of the logic. Again : to 
most people there would seem to be weight in the remark, that, as the 
Indians were evidently to receive a consideration for their lands, they 
must have a title which should command respect. But no ; in view of 
this statement, the Committee come to a different conclusion. Here is 
another specimen. 

The morality of the doctrines inculcated by the Georgia legislature 
may be sufficiently understood by the broad positions, that discovery 
gave absolute title to Europeans ; that the title of the original inhabi- 
tants was permissive ; that it was a mere tenancy at will, (which is no 
title at all) ; that the discoverer might determine the tenancy at any mo- 
ment, by negotiation or force ; and that, as all European governments 
are alleged to be agreed in these principles, "force becomes right." 

The inhabitants of North America might, therefore, have been right- 
fully driven into the ocean, " at any moment," when the discoverers 
should have been willing and able thus to drive them. It is to be infer- 
red, that Cortes and Pizarro were only executing the lawful commands 
of the king of Spain, when they were taking possession of Mexico and 
Peru, which, according to this doctrine, rightfully belonged to him ; 
though, in doing so, they were under the unpleasant necessity of murder- 
ing the original inhabitants. 

The Committee are entirely mistaken, in point of fact, when they say, 
that « every foot of land in the United States is held" by such a title as 
has been described ; that is, a title in the European sovereign, which, 
on the moment of discovery, supplanted and subverted all the rights of 
the natives to the lands, on which they were born, and of which they 
were in full possession. It may be truly said, that there is not, within 
the limits of the United States, as fixed by the peace of 1783, a single 
foot of land held, as against the original inhabitants, by the title of dis- 
covery alone. Incomparably the largest portion of the territory, within 
the above mentioned limits, has been purchased of the Indians. Some 
small portions have been conquered ; the original owners have been nearly 



86 



exterminated in war, or driven from their lands by a superior force, or 

compelled to cede them, as the price of a pacification. But in all these 
cases, the wars had some other origin, than an attempt to enforce the 
title of discovery. The politicians of Georgia are requested to produce 
a single instance, after the settlement of the Anglo-American colonies 
commenced, of any English sovereign, or any colonial governor, or any 
colonial legislature, or any State Legislature, anterior to the treaty of 
the Indian Spring, in 1825, having assumed the right of taking forcible 
possession of Indian country, at any moment, by virtue of the title of 
discovery, and without any regard to what the Supreme Court has 
called " the just and legal claim" of the natives to retain possession of 
their country. The exclusive right of extinguishing the Indian title, or 
what has usually been called the right of pre-emption, is a totally differ- 
ent thing from this all-absorbing and overwhelming right of discovery, 
on which Georgia now insists. If a single instance of such an assump- 
tion can be produced, let it be brought forward. Let us contemplate 
the circumstances in which it originated, and examine its claims to re- 
spect. Thousands of instances can be adduced, on the other hand, of 
acknowledgments made by emigrants from Europe, and by rulers of 
every grade from the highest to the lowest ; — acknowledgments, which 
admitted the perfect right of the Indians to the peaceable possession of 
their country, so long as they chose to retain it. 

But if all the governments of Europe had, during the three last cen- 
turies, held the doctrine now so warmly espoused by Georgia, how 
utterly vain would be every attempt to defend it, or to make it appear 
otherwise than tyrannical, cruel, and abominable. Not all the monarchs 
of Europe, nor all the writers on the laws of nations, — not all the power 
and all the sophistry in the world, — could alter its character, or convince 
an honest, candid, intelligent man, that it is entitled to the least respect. 
What is this doctrine, so necessary to the present claims of Georgia ? 
It is neither more nor less than the assumption, that the circumstance 
of an English vessel having sailed along the American coast from Cape 
Hatteras to the Bay of Fundy, as the case might be, gave the English 
king an absolute and perfect title, not only to the const, but to all the 
interior ; and that he might therefore empower any of his subjects to 
take forcible possession of the country, to the immediate exclusion and 
destruction of the original inhabitants. 

In the history of the slave-trade, we have a perfect exhibition of the 
total inefficacy of human law to sanction what is flagitiously immoral ; 
especially after the eyes mankind are fixed upon it. For more than two 
hundred years, the principal powers of Europe legalized the slave-trade. 
The judicial tribunals of all countries sustained it by their decisions. 
It was universally established and assented to. But was it right ? The 
voice«of the world has pronounced its irrevocable sentence. It is now 
piracy, and to have been recently connected with it is indelible infamy. 
But is it more clearly wrong to take Africans from their native land, 
than it is to make slaves of the Cherokees upon their native land ? or, 
on penalty of their being thus enslaved, driving them into exile ? 

It may be supposed, that this is too strong a representation of the 
case ; and that it would be no very serious calamity to the Cherokees, 
if they were to come under the laws of Georgia. One would think, 



however, that the spirit of the Report, from which quotations have been 
made, must be an indication of what is to be expected from Georgia, in 
the way of systematic legislation on this subject. 

One law has already been enacted, with the direct view of extending 
the jurisdiction of Georgia over the Cherokees. It was approved Dec. 
20, 1828, -and deserves a particular consideration. 

The first five sections divide that part of the Cherokee country, 
which falls within the chartered limits of Georgia, into five portions, 
attaching each one of these portions to a contiguous county of Geor- 
gia. The sixth section extends the laws of Georgia over white resi- 
dents within the limits above mentioned ; and the seventh declares, 
that, after June 1, 1830, all Indians "residing in said territory, and 
within any one of the counties as aforesaid, shall be liable and sub- 
ject to such laws and regulations, as the legislature may hereafter pre- 
scribe." 

Sec. 8. " That all laws, usages, and customs, made, established, and in force, in 
the said territory, by the said Cherokee Indians, be, and the same are hereby, on 
and after the first day of June, 1830, declared null and void. 

9. " That no Indian, or descendant of Indian, residing within the Creek or Che- 
rokee nations of Indians, shall be deemed a competent witness, or a party to any 
suit, in any court created by the constitution or laws of this State, to which a 
white man may be a party." 

Under the administration of this law, a white man might rob or mur- 
der a Cherokee, in the presence of many Indians, and descendants of 
Indians ; and yet the offence could not be proved. That crimes of this 
malignant character would be committed is by no means improbable ; 
but assaults, abuses, and vexations, of a far inferior stamp, would render 
the servitude of the Cherokees intolerable. The plan of Georgia, is, as 
explained by her Senate, to seize five sixths of the territory in question, 
and distribute it. among her citizens. If a Cherokee head of a family 
chooses to remain, he may possibly have his house and a little farm as- 
signed to him. This is the most favorable supposition. But his rights 
are not acknowledged. He does not keep the land because it is his 
own ; but receives it as a boon from Georgia. He will be surrounded 
with five white neighbors. These settlers will not be from the more 
sober, temperate, and orderly citizens of Georgia, but from the idle, the 
dissolute, the quarelsome. Many of them will hate Indians, and take 
every opportunity of insulting and abusing them. If the cattle of a 
Cherokee are driven away in his presence ; if his fences are thrown 
down and his crops destroyed ; if his children are beaten, and his do- 
mestic sanctuary invaded ; — whatever outrage and whatever injury he 
may experience, he cannot even seek a legal remedy. He can neither 
be a party, nor a witness. He has no friend, who can be heard in his 
behalf. Not an individual can be found, who has any interest in seeing 
justice done him, and who, at the same time has any power to serve him. 
Even the slaves of his new neighbors are defended by the self-interest 
of their masters. But he has not even this consolation. He is exposed 
to the greatest evils of slavery, without any of its alleviations. Every 
body is let loose upon him ; and it is neither the interest, nor the incli- 
nation, nor the official duty, of the white settlers to defend him. Every 
body may destroy his property ; but nobody is bound to keep him from 



9 



38 



starving, when his property is gone. How long could a Cherokee live 
under such treatment as this ? 

Accustomed from his birth to feelings of entire equality and indepen- 
dence, he would find himself, at a single stroke, smitten to the earth, 
and there held till manacles of a most degrading vassalao-e were fasten- 
ed upon him. As soon as the net of Georgia legislation is sprung over 
him, he is equally and instantly exposed to public persecution and pri- 
vate indignity. He feels himself to be a vagabond, even while standing 
upon the very acres, which his own hands have laboriously subdued and 
tilled, — an outlaw, in the house, which he has erected and made com- 
fortable for himself, and which, to a white man, would be a castle, — a 
trespasser, for innocently treading the soil of his native forests, — an in- 
truder, for drinking the pure' water of his native springs, or breathino- 
the air of his native mountains,— a stranger among his^neighbors, — an 
alien, on the spot where he was born. 

Who are the human beings, thus suddenly brought into so deplorable 
and abject a condition I Are they Caffres and Hottentots, skulking 
through the woods, in a state of nudity, or covered only by a few shreds 
of tattered sheepskin ? Are they runaway slaves, pursued by the ven- 
geance of exasperated masters ? Are they Ishmaelites, waylaying the 
path of inoffensive travellers, and their hands reeking with the blood of 
recent murders ? Are they bands of ruffians, collected from the worst 
among the discharged tenants of our penitentiaries ? Have they in- 
vaded our settlements, driven off the inhabitants, and established them- 
selves in an unrighteous possession, of which they are now about to be 
divested ? What is their character, and what is their crime, that their 
lands are to be divided, and their persons and families to be put beyond 
the protection of the law ? 

If they were Caffres, or Hottentots, they should be dealt with kindly ; 
and should be compassionated in their ignorance and degradation. If 
some of them were Ishmaelites and renegadoes, they should be tried in 
a regular manner. The innocent should not be punished with the 
guilty. The guilty should not be punished without a trial ; and 
neither the innocent nor the guilty, should be delivered over to private 
malice. 

How would an intelligent foreigner, a German, a Frenchman, or an 
Englishman, be astonished to learn, that the Cherokees are neither sa- 
vages or criminals ; — that they have never encroached upon the 
lands of others ; — that their only offence consists in the possession of 
lands which their neighbors covet ; — that they are peaceful agricultu- 
rists, better clothed, fed, and housed, than many of the peasantry, in 
most civilized countries ; — that they have sustained diplomatic rela- 
tions with the whites, at different periods, from the first settlement of 
the contiguous territory by Europeans ; — that these relations have 
ripened into a firm and lasting peace, which has not been broken by a 
single act of hostility for forty years ; — that the peace thus cemented 
is the subject of numerous treaties, the bases of which are, a sove- 
reignty of the Ckerokees, limited, in certain respects, by express 
stipulations, and a guaranty, on the part of the United States, of pro- 
tection and inviolate territorial limits ; — that the treaties have been the 
foundation of numerous legal enactments for the protection of the 



89 



weaker party, whose title has been pronounced, by the highest tribu- 
nal in our country, to be worthy of the respect of all courts, till it be 
legitimately extinguished ; — that the Cherokees are not charged with 
having broken their engagements, or done any thing to forfeit the 
guaranty, which they had received as the indispensable condition of 
their grants to the United States ; — that they have always been called 
brothers and children by the President of the United States, and by all 
other public functionaries, speaking in the name of the country ; — that 
they have been encouraged and aided, in rising to a state of civiliza- 
tion, by our national government, and benevolent associations of indi- 
viduals ; that one great motive, presented to their minds by the govern- 
ment, has uniformly been the hope and expectation of a permanent re- 
sidence, as farmers and mechanics, upon the lands of their ancestors, 
and the enjoyment of wise laws, administered by themselves, upon truly 
republican principles ; that, relying upon these guaranties, and sustained 
by such a hope, and aided in the cultivation of their minds and hearts 
by benevolent individuals stationed among them at their own request, 
and partly at the charge of the general government, they have greatly 
risen to their character, condition, and prospects ; — that they have a re- 
gularly organized government of their own, consisting of legislative, 
judicial, and executive departments, formed by the advice of the third 
President of the United States, and now in easy and natural operation ; 
—that a majority of the people can read their own language, which was 
never reduced to writing till less than seven years ago, and never print- 
ed, till within less than two years ; — that a considerable number of the 
young, and some of the older, can read and write the English lan- 
guage ; — that ten or twelve schools are now attended by Cherokee 
children ; — that, for years past, unassisted native Cherokees have been 
able to transact public business, by written communications, which, to 
say the least, need not fear a comparison, in point of style, sense, and 
argument, with many communications made to them, by some of the 
highest functionaries of our national government ; — that these Chero- 
kees, in their treatment of whites, as in their intercourse with each 
other, are mild in their manners, and hospitable in their feelings and 
conduct ;- — and, to crown the whole, that they are bound to us by the 
ties of Christianity which they profess, and which many of them exem- 
plify as members of regular Christian churches. 

These are the men, whose country is to be wrested from them, and 
who are to be brought under the laws of Georgia without their own 
consent. These civilized and educated men ; — these orderly members 
of a society, raised, in part by the fostering care of our national gov- 
ernment, from rude materials, but now exhibiting a good degree of 
symmetry and beauty ; — these laborious farmers, and practical repub- 
licans ; — these dependent allies, who committed their all to our good 
faith, on the "guaranty" of Gen. Washington, the " assurance" of Mr. 
Jefferson, and the re-assurance of Gen. Jackson and Mr. Calhoun, 
sanctioned, as these several acts were, by the Senate of the United 
States ; — these " citizens of the Cherokee nation," as we called them 
in the treaty of Holston ;■— these fellow Christians, regular members 
of Moravian, Presbyterian, Baptist, and Methodist churches, fellow- 
citizens with the saints and of the household of God, are to be suddenly 
12 



90 



brought under the laws of Georgia, according to which they can be 
neither witnesses, nor parties, in a court of justice. Under the laws, 
did I say ? It is a monstrous perversion to call such a state of things 
living under law. They are to be made outlaws on the land of their 
fathers ; and, in this condition, to be allowed the privilege of choosing 
between exile and chains. 

But who are the men, that impose so fearful an alternative ? and 
what is the government, that hesitates to redeem its pledge ? Is it 
some rotten Asiatic despotism, sinking under the crimes and corrup- 
tions of by-gone centuries, feeling no responsibility, and regarding no 
law of morality or religion ? Not so. It is a government, which sprung 
into existence with the declaration " that all men are created equal ; 
that they are endowed by their Creator with certain unalienable rights ; 
that among these are life, liberty, and the pursuit of happiness." From 
a government thus established, this flagrant, wrong is apprehended ; and 
from a people, who boast that they are the freest and most enlightened 
community on earth ; who insist on the right of every community to 
govern itself ; and who abjure the very idea of foreign dictation. 



No. XXIII. 

Views of benevolent individuals — Supposed inconvenience — Georgia not depriv- 
ed of her rights — The Cherokee country not of great value — No cause of alarm 
from imperium in imperio — Indian tribes in the older States — Terms, on which 
the Indian sovereignties should be extinguished — The consent of the Indians — 
The consent of the United States — Chancellor Kent's decision, with reference 
to principles of public morality. 

. There are in our country not a few benevolent individuals, who 
cheerfully admit that the Indians have a perfect right to the possession 
of their country ; that we are bound by treaties to defend this right ; 
and that the forcible seizure and division of their lands would be an 
act of enormous injustice : who yet suppose, that the continuance of 
the Cherokees, where they now are, would be extremely inconvenient 
to Georgia and to the United States. These persons are inclined to 
think, that the inconvenience will be found so great, as to amount to 
a sort of moral necessity ; and that, therefore, the sooner the Chero- 
kees consent to a removal, the better it will be for them, as well as for 
their white neighbours. 

An acquaintance with the real state of facts would convince these 
benevolent individuals, that they are quite mistaken, in regard to the 
best manner of promoting the permanent good of all parties. The in- 
convenience, which appears so formidable, is altogether imaginary. 
It will utterly vanish, at the very moment when the state of Georgia, 
and other white neighbours of the Indians, shall be inclined to do what 
is right. If the disposition to take the property of the weak and de- 
fenceless and convert it to our own use, is to be dignified with the 
name of moral necessity, we should be aware that such a doctrine sub- 
verts the very foundation of law and order. 

It is urged, that if the Cherokees remain Where they are, Georgia 



91 



is deprived of a very valuable portion of land within her chartered limits. 
But this an abuse of language. Georgia is deprived of nothing. If the 
Cherokees are compelled to remove, either by physical force, or what 
is called moral necessity, they are deprived of their inheritance ; but if 
they remain, there is no deprivation on either side. An opulent land- 
holder might as well complain, that he was deprived of some excellent 
land, which would be very convenient to him, and which he expected 
to have acquired long ago for a trifle ; but, to his great surprise, the 
rightful owner refused to sell. This is a species of privation to which 
covetous men have always been exposed, in every part of the world. 
They cannot get all the land that lies contiguous to their possessions ; 
and the larger their domains are, the greater inconvenience do they feel ; 
for the more extensive their limits, the greater is the number of obstinate 
neighbors, with whom they come into contact. What an inconvenient 
world do we live in ! And what a calamity it is, that there should be so 
many of the poor, the weak, and the defenceless, who are in perpetual 
danger of being trodden under the feet of their betters ! 

Thus it is, that the insatiable desires of men create imaginary trou- 
bles. The State of Georgia, exclusive of the Cherokee country, has 
only six or seven souls, one half of whom are blacks, to each square 
mile ; that is, omitting merchants, traders, and mechanics, less than one 
white family to two square miles of land. The most remote part of her 
chartered limits is still in the rightful occupancy of the Cherokees. The 
land of this portion is far less capable of lucrative cultivation, than the 
State is generally. I speak not without some knowledge on the subject ; 
and I have made inquiries of others. Let the representatives in Con- 
gress from Georgia, if they are personally acquainted with the quality of 
the land within the Cherokee limits, state frankly how large a part is 
composed of mountains and barren tracts, which a Georgian would pro- 
nounce utterly worthless ; how large a part would produce but mode- 
rate crops ; and how small a fraction would be considered land of a very 
good quality. Let these things be stated, and it will be found that the 
Cherokee country is not by any means so valuable, as has commonly 
been supposed. 

It can make no odds as to title, whether the soil be as fertile as the 
banks of the Ganges, or as barren as the sands of Arabia ; but it 
should be known, that the value of the property here at stake is 
nothing, compared with the feelings of the Cherokees ; not to mention 
the importance of the principles to be decided. Though the Cherokee 
country is in a healthful climate, and is a pleasant and comfortable resi- 
dence for the original inhabitants, the far greater part of it would be left 
untouched for many years, if exposed to sale in the same manner as the 
public lands generally of the United States. The interest of Georgia, 
therefore, is inconsiderable ; nor would the prosperity of that State be 
materially affected, if another acre were never to be added to the terri- 
tory now in her actual possession. 

It has been alleged, that great inconvenience will be experienced by 
having an imperium in imperio :— a separate, independent community 
surrounded by our own citizens. But in what do these frightful incon- 
veniences consist ? A little pacific community of Indians, living among 
the mountains, attending to their own concerns, and treating all who 



92 



pass through their borders with kindness and hospitality, is surely no very 
great cause of alarm. If there were a territory in possession of a pow- 
erful and hostile nation, and in the immediate vicinity of our white set- 
tlements, where our rivals and enemies might shelter themselves, while 
plotting against our peace, and where fugitives from justice could find 
a refuge, there might be some reason for apprehension ; though even 
these circumstances would never excuse a violation of treaties. But 
the Cherokees can never have any interests adverse to our national 
prosperity. They have solemnly agreed to live under our protection, 
and to deliver up fugitives from justice. We have by treaty a free na- 
vigation of their waters, and a free passage through their country. What 
more can we reasonably desire ? 

But if they were an inconvenience to us, as a consequence of their 
having been aboriginal inhabitants on this continent, how are these in- 
habitants to blame ? If we are incommoded, by having a little Indian 
community in the midst of us, we brought the evil upon ourselves by 
pushing our settlements into the wilderness, in such a manner as to sur- 
round our red brethren. They did not compel us, nor allure us, nor in- 
vite us, to such a course of proceeding ; and they are not under the 
slightest obligation to give up their national existence to save us from 
this supposed inconvenience, though it were many times greater than it 
has ever been alleged to be. 

The dangers from an imperium in imperio are, in the case before us, 
altogether chimerical. Among our own citizens, we have governments 
within governments, of all sizes from a school district upwards ; and all 
sorts of corporations with limited powers. In Great Britain, there is a 
vast diversity of customs, rights, franchises, and exemptions, peculiar to 
different towns, boroughs, cities, and counties, and to the larger divisions 
of the realm. Germany is almost wholly composed of smaller commu- 
nities, each possessing a limited sovereignty ; and many of them conduct- 
ing their municipal affairs according to their own discretion. But, 
(which is more immediately to the purpose,) there have been separate 
communities of Indians, in most of the older members of our confede- 
racy, from the first settlement of our country ; and no disastrous conse- 
quences have followed. At the present day there are, in the State of 
New York, several small tribes of Indians, living under their own laws, 
and not partaking of the rights of citizens of the United States. They 
have been declared, by the highest legal tribunal in that State, to be 
" not citizens, but distinct tribes or nations, living under the protection 
of the government." The opinion of Chancellor Kent, which I never 
saw till all the preceding numbers were in the printer's hands, supports 
the positions which I endeavoured to establish, in the examination of 
treaties. Yet the State of New York does not appear to suffer, from 
having permitted these tribes to remain on their own land ; — to hold it 
in common , — to remain exempt from taxes, military duty, and every 
kind of public burden ; — and to sustain a qualified sovereignty, though 
surrounded by white neighbours. 

If the time shall ever arrive, when these sovereignties may become 
extinct to the mutual advantage of the Indians and whites, the manner 
of bringing about such a change will demand the efforts of the most dis- 



93 



interested men in our country, and the councils of the wisest. In the 
mean time, let us hear the advice of Chancellor Kent on the subject. 

"When the time shall arrive for us to break down the partition wall between us 
and them, and to annihilate the political existence of the Indians as nations and 
tribes, I trust we shall act fairly and explicitly, and endeavour to effect it with 
the full knowledge and assent of the Indians themselves, and with the most scru- 
pulous regard to their weaknesses and prejudices, and with the entire approba 
tion of the government of the United States. I am satisfied that such a course 
would be required by prudence, and would become necessary, not only for con- 
science' sake, but for the reputation of our justice." Johnson's Reports, vol. 20, 
p. 717. 

The learned jurist was speaking of the small tribes, in the State of 
New York, whose domains are now restricted by their own consent to 
tracts of a few miles square, and whose numbers are reduced to a few 
hundreds. These tribes, having resigned many attributes of sovereignty 
which the Cherokees still retain, and living in the midst of a crowded 
population, may possibly find it for their interest to abdicate the sove- 
reignty, which still remains to them. In such an event, the chancellor 
lays it down as indispensable, that the government of New York should 
* endeavour to effect the change, with the full knowledge and assent of 
the Indians themselves.' This is, indeed, one of the first dictates, 
which would be obeyed by an upright and honourable mind : but how 
much more imperative is it in the case of the Cherokees, who number 
thousands for the hundreds of Oneidas and Senecas ; — who have a suf- 
ficient territory, in which they can secure themselves, under the protect- 
ing laws of the United States, from molestation on the part of the 
whites ; — who have a regular government of their own, suited to their 
habits, their condition, and their wants ; — and who have their relations 
with the United States distinctly marked and defined by various treaties. 
If, however, the Cherokees can be persuaded, by fair and honest argu- 
ments, that they will be gainers by giving up their sovereignty, either 
now or fifty years hence, let their consent be obtained. Let them 
always be made to feel, that they are free agents ; — not in such a sense 
as the traveller is free, when he delivers up his purse, with a pistol at 
his breast ;-— but as truly free as any man, or body of men, who make a 
contract under the protection of law, and on terms of perfect recipro- 
city. The Cherokees should, especially at this juncture, be again 
assured, that they stand behind the shield of the law, — the supreme law 
of the land — which, in a government like ours, should afford a defence 
not less perfect, and certainly much more convenient, than could be af- 
forded by a cordon of 150,000 bayonets, or a wall of adamant from the 
earth to the skies. 

The chancellor says, also, that this change should be effected, (if at 
all,) " with the most scrupulous regard to the weaknesses and preju- 
dices" of the Indians. He would not justify the use of cold and unfeel- 
ing language, such as : " Indians must always retire from the march of 
civilization. It is in vain to attempt to -save them." He would much 
sooner lament the frauds, and impositions, which have been practised 
upon them by profligate and interested white men, and the deficiency of 
benevolent feeling towards them, on the part of many, who would by no 
means, tolerate fraud or oppression. Justice requires that it should be 



94 



said, however, that most of the legislatures of the older States framed 
laws for the protection of Indians, with a most benevolent regard to 
their good, and on the genuine principles of Christianity. 

The chancellor says again, that the change should be effected, " with 
the entire approbation of the government of the United States." This 
change, be it remembered, had reference to the little tribes, in the State 
of New York. Yet the highest law character in the State, delivering 
an opinion before the Senate, sitting as the highest court of law in the 
State, did not apprehend an impeachment for sacrificing State Rights, 
when he declared, that if an arrangement should be made on this sub- 
ject, it should be made " with the entire approbation of the government of 
the United States." And the Senate, consisting of thirty members, or 
more, from all parts of the State, supported the reasoning of the chan- 
cellor, with but a single dissenting vote. How different a spirit is here, 
from that which prevails in Georgia ! 

At the close of the paragraph, which I have quoted, the chancellor 
recommends this course, not only as the most prudent course, and " not 
only for conscience'' sake, but for the reputation of our justice." Who- 
ever fears God, or regards man ; — whoever possesses an enlightened 
conscience, and feels his accountability to his Maker, or wishes to de- 
serve the confidence and respect of good men, and the gratitude of after 
times ; — such a man, says this learned judge in effect, will take heed, 
that he deals kindly and justly by the Indians. 

Hamilton, who is now admitted, by all parties, to have been an illus- 
trious statesman, and to have felt deeply for the honour of his country, 
said, respecting treaties, that they are " contracts with foreign nations, 
which have the force of law, but derive it from the obligations of good 
faith." [Federalist, No. 75.] He reckoned, as among the qualifica- 
tions of those who were to make treaties, " a nice and uniform sensibi- 
lity to national character." These qualifications he expected to find, in 
men selected by the legislatures of the several States, as representatives 
of the worth, the dignity, and the character of the country, in the highest 
branch of our national legislature. 

It is one of the most encouraging signs of the present times, that pub- 
lic men are made to feel their accountability to the public, and their 
obligation to bring their measures of state within the rules of private 
morality. I speak on a large scale, and not with reference to a single 
country ; much less, in regard to a single administration. This de- 
mand of accountability will ultimately be made by the people of every 
country ; and if rulers, whether kings or presidents, parliaments or 
congresses, perpetrate acts in their public character, which would be 
perfidious in a private man, they will be pronounced guilty; and, 
in cases of great importance, if thus pronounced guilty by the voice of 
dispassionate and intelligent men, their names will be consigned to 
infamy. 

The great principles of morality are immutable. They bind nations, 
in their intercourse with each other, as well as individuals. On this 
point, I must be indulged with a quotation from Chancellor Kent's 
Commentaries. 

" We ought not therefore to separate the science of public law from that of eth- 
ics, nor encourage the dangerous suggestion, that governments are not as strictly 



95 



bound by the obligations of truth, justice, and humanity, in relation to other pow- 
ers, as they are in the management of their own local concerns. States, or bo- 
dies politic, are to be considered as moral persons, having a public will, capable 
and free to do right and wrong, inasmuch as they are collections of individuals, 
each of whom carries with him, into the service of the community, the same bind- 
ing law of morality and religion, which ought to control his conduct in private 
life." Vol. I. p. 2. 

"The law of nations, so far as it is founded on principles of natural law, is 
equally binding in every age, and upon all mankind. But the Christian nations 
of Europe, and their descendants on this side of the Atlantic, by the vast superi- 
ority of their attainments in arts, and science, and commerce, as well as in policy 
and government ; and, above all, by the brighter light, the more certain truths, 
and the more definite sanctions, which Christianity has communicated to the ethi- 
cal jurisprudence of the ancients, have established a law of nations peculiar to 
themselves." p. 3. 

Christianity, then, is the basis of the present law of nations. 

Another learned judge has recently declared, on a public and solemn 
occasion, that Christianity is a part of the common law. 

" One of the beautiful boasts of our municipal jurisprudence is, that Christiani- 
ty is a part of the common law, from which it seeks the sanctions of its rights, and 
by which it endeavours to regulate its doctrines. And, notwithstanding the spe- 
cious objection of one of our distinguished statesmen, the boast is as true as it is 
beautiful. There never has been a period, in which the common law did not recog- 
nize Christianity as lying at its foundations" Judge Story's Inaugural Dis- 
course, p. 20. 

If Christianity is the basis of the law of nations and of the common 
law of the United States, it surely is not out of place, though it should 
be unnecessary, to remind our lawgivers and judges, that one of the 
great maxims of Christianity, for the regulation of intercourse among 
men, is, that we should do to others whatever we would desire that they, 
in like circumstances, should do to us. Let the people of Georgia, and 
the people of the United States, seriously reflect, whether they should 
be willing to receive the same treatment, with which the Cherokees 
are threatened. Would they be content to go into exile, or to come 
under the laws of a foreign state, with the studied premonition that 
they could be neither witnesses, nor parties, in a court of justice ? 
Let the appeal be made to conscience ; and unless the conscience be 
buried under impenetrable ignorance, or seared as with a hot iron, the 
answer cannot be doubtful. 



No. XXIV. 

Plan for the removal of the Indians — Objections to it — Invented for the benefit of 
the whites — It speaks too much of generosity, too little of justice — It is visiona- 
ry — The Indians unwilling to remove — No good place can be found for them — 
Government cannot fulfil its promises — There can be no guaranty — Privations 
of a removal, and quarrels afterwards — Where shall they remove next ? — If re- 
moved, the Indians will not confide in the government — Conclusion. 

I have now arrived at my closing number ; in which I propose to ex- 
amine the plan for the removal of the Indians beyond the Mississippi. 

This plan, so far as its principles have been developed and sanctioned 
by the government, is as follows : — 

Congress will set apart a tract of country west of the Arkansas ter- 



96 



ritory, perhaps 150 miles long and 100 miles broad, and will guaranty 
it as a perpetual residence of Indians. Upon this tract will be collected 
numerous tribes, now resident in different States and Territories. The 
land will be divided among tribes and individuals, as Congress shall 
direct. The Indians, thus collected, will be governed by white rulers ; 
that is, by agents of the United States ; till the time shall arrive, when 
they can be safely trusted with the government of themselves. At pre- 
sent they are to be treated as children, and guarded with truly paternal 
solicitude. The United States will bear the expense of a removal ; and 
will furnish implements of agriculture, the mechanical arts, schools and 
other means of civilization. Intruders will be excluded. Ardent 
spirits will not be allowed to pass the line of demarkation. And, as a 
consequence of all these kind and precautionary measures, it is supposed 
that the Indians will rise rapidly in various respects ; that they will be 
contented and happy in their new condition ; and that the government 
will merit and receive the appellation of benefactors. This is the plan ; 
and the following considerations appear to my mind in the light of ob- 
jections to it : — 

1. It is a suspicious circumstance, that the wishes and supposed in- 
terests of the whites, and not the benefit of the Indians, afford all the 
impulse, under which Georgia and her advocates appear to act. The 
Indians are in the way of the whites ; they must be removed for the 
gratification of the whites ; and this is at the bottom of the plan. But 
if the Cherokees had been cheerfully admitted, by the inhabitants of 
Georgia, to possess an undoubted right to the permanent occupation of 
their country ; and if this admission were made in terms of kindness, 
and with a view to good neighborhood, according to Mr. Jefferson's 
promise embodied in a treaty ; — if such had been the state of things, 
we should have heard nothing of the present scheme. Is it likely that 
a plan conceived in existing circumstances, and with the sole view of 
yielding to unrighteous and unreasonable claims, can be beneficial in 
its operation upon the Indians ? A very intelligent member of Con- 
gress from the west declared to the writer of these numbers, that the 
design of the parties most interested was, to destroy the Indians, and 
not to save them. I do not vouch for the accuracy of this opinion ; but 
it is an opinion not confined to one, or two, or twenty of our public 
men. At any rate there is no uncharitableness in saying, that Georgia 
is actuated by a desire to get the lands of the Cherokees ; for she openly 
avows it. As little can it be doubted, that the plan in question is suited 
to accomplish her desires. It is not common, for a party deeply inter- 
ested, to devise the most kind and benevolent way of treating another 
party, whose interests lie in a different direction. 

2. The plan is to be distrusted, because its advocates talk much of 
future generosity and kindness ; but say nothing of the present obliga- 
tions of honor, truth, and justice. What should we say, in private life, 
to a man, who refused to pay his bond, under hand and seal, — a bond, 
which he did not dispute, and which he had acknowledged before wit- 
nesses a hundred times over, — and yet should ostentatiously profess 
himself disposed to make a great many handsome presents to the obligee, 
if the obligee would only be so discreet as to deliver up the bond ? 
Would it not be pertinent to say, " Sir, he just before you are gtmrou* ; 
— first pay your bond, and talk of presents afterwards." 



97 



Let the government of the United States follow the advice given by 
Chancellor Kent to the State of New York. Let our public functiona- 
ries say to the Cherokees ; " The United States are bound to you. 
The stipulations are plain ; and you have a perfect right to demand 
their literal fulfilment. Act your own judgment. Consult your own 
interests. Be assured that we shall never violate treaties." If this 
language were always used ; if acknowledged obligations were kept in 
front of every overture ; there would be less suspicion attending advice, 
professedly given for the good of the Indians. It is not my province to 
question the motives of individuals, who advise the Cherokees to re- 
move. No doubt many of these advisers are sincere. Some of them 
are officious ; and should beware how they obtrude their opinions, in a 
case of which they are profoundly ignorant, and in a manner calculated 
only to weaken the righteous cause. All advisers, of every class, should 
begin their advice with an explicit admission of present obligations. 

3. The plan in question appears to me entirely visionary. There 
has been no experience among men to sustain it. Indeed, theoretical 
plans of government, even though supposed to be founded on experi- 
ence gained in different circumstances, have uniformly and utterly 
failed. So wise and able a man as Mr. Locke was totally incompe- 
tent, as the experiment proved, to form a government for an American 
colony. But what sort of a community is to be formed here ? Indians 
of different tribes, speaking different languages, in different states of 
civilization, are to be crowded together under one government. They 
have all heretofore lived under the influence of their hereditary cus- 
toms, improved, in some cases, by commencing civilization ; but they 
are now to be crowded together, under a government unlike any 
other that ever was seen. Whether Congress is to be employed in di- 
gesting a municipal code for these congregated Indians, and in mend- 
ing it from session to session ; or whether the President of the United 
States is to be the sole legislator ; or whether the business is to be 
delegated to a civil or military prefect, we are not told. What is to 
be the tenure of land ; — what the title to individual property ; — what 
the rules of descent ; — what the modes of conveyance ; — what the re- 
dress for grievances ; — these and a thousand other things are entirely 
unsettled. Indeed, it is no easy matter to settle them. Such a man 
as Mr. Livingston may form a code for Louisiana, though it requires 
uncommon talents to do it. But ten such men as he could not form a 
code for a heterogeneous mixture of Indians. 

If this embarrassment were removed, and a perfect code of aborigi- 
nal law were formed, how shall suitable administrators be found ? Is 
it probable that the agents and sub-agents of the United States will 
unite all the qualifications of Solon and Howard ? Would it be strange 
if some of them were indolent, unskilful, partial, and dissolute ? and if 
the majority were much more intent on the emoluments of office, than 
on promoting the happiness of the Indians ? One of the present In- 
dian agents, a very respectable and intelligent man, assured me, that 
the plan for the removal of the Indians was altogether chimerical, and, 
if pursued, would end in their destruction. He may be mistaken ; but 
his personal experience in relation to the subject is much greater than 
13 



98 



that of any person, who has been engaged in forming or recommending 
the plan. 

4. The four southwestern tribes are unwilling to remove. They 
ought not to be confounded with the northern Indians, as they are in 
very different circumstances. The Cherokees and Choctaws are rap- 
idly improving their condition. The Chickasaws have begun to follow 
in the same course. These tribes, with the Creeks, are attached to 
their native soil, and very reluctant to leave it. Of this the evidence 
is most abundant. No person acquainted with the actual state of things 
can deny, that the feelings of the great mass of these people, apart 
from extraneous influence, are decidedly and strongly opposed to a 
removal. Some of them, when pressed upon the subject, may remain 
silent. Others, knowing how little argument avails against power, 
may faintly answer, that they will go, if they must, and if a suitable 
place can be found for them. At the very moment, when they are say- 
ing this, they will add their strong conviction, that no suitable place 
can be found. In a word, these tribes will not remove, unless by com- 
pulsion, or in the apprehension of force to be used hereafter. 

5. The Indians assert, that there is not a sufficient quantity of good 
land, in the contemplated tract, to accommodate half their present 
numbers ; to say nothing of the other tribes to be thrust into their 
company, Even the agents of the United States, who have been em- 
ployed with a special view to make the scheme popular, admit that 
there is a deficiency of wood and water. Without wood for fences 
and buildings, and for shelter against the furious northwestern blasts of 

v winter, the Indians cannot be comfortable. Without running streams, 
they can never keep live stock ; nor could they easily dig wells and 
cisterns for the use of their families. The vast prairies of the west will 
ultimately be inhabited. But it would require all the wealth, the en- 
terprise, and the energy, of Anglo-Americans, to make a prosperous 
settlement upon them. Nor, if the judgment of travellers is to be re- 
lied on, will such a settlement be made, till the pressure of population 
renders it necessary. The most impartial accounts of the country, to 
the west of Missouri and Arkansas, unite in representing it as a bound- 
less prairie, with narrow stripes of forest trees, on the margin of rivers. 
The good land, including all that could be brought into use by partially 
civilized men, is stated to be comparatively small. 

6. Government cannot fulfil its promises to emigrating Indians. It 
is incomparably easier to keep intruders from the Cherokees where 
they now are, than it will be to exclude them from the new country. 
The present neighbours of the Cherokees are, to a considerable extent 
men of some property, respectable agriculturists, who would not think 
of any encroachment, if the sentence of the law were pronounced firmly 
in favour of the occupants of the soil. Stealing from the Indians is by 
no means so common, as it was fifteen years ago. One reason is, that 
the worst class of white settlers has migrated farther west. They are 
stated, even now, to hover around the emigrant Creeks, like vultures. 
It may be laid down as a maxim, that so long as Indians possess any 
thing, which is an object of cupidity to the whites, they will be exposed 
to the frauds of interested speculators, or the intrusion of idle and 
worthless vagrants : and the farther removed Indians are from the 



99 



notice of the government, the greater will be their exposure to the arts, 
or the violence, of selfish and unprincipled men. 

Twenty years hence, Texas, whether it shall belong to the United 
States or not, will have been settled by the descendants of Anglo- 
Americans. The State of Missouri will then be populous. There will 
be great roads through the new Indian country, and caravans will be 
passing and repassing in many directions. The emigrant Indians will 
be denationalized, and will have no common bond of union. Will it 
be possible, in such circumstances, to enforce the laws against intruders. 

7. If the Indians remove from their native soil, it is not possible that 
they should receive a satisfactory guaranty of a new country. If a 
guaranty is professedly made by a compact called a treaty, it will be 
done at the very moment that treaties with Indians are declared not to 
be binding, and for the very reason that existing treaties are not strong 
enough to bind the United States. To what confidence would such an 
engagement be entitled ? 

It is now pretended that President Washington, and the Senate of 
1790, had no power to guaranty to Indians the lands on which they 
, were born, and for which they were then able to contend vigorously, at 
the muzzle of our guns. Who can pledge himself, that it will not be 
contended, ten years hence, that President Jackson, and the Senate of 
1830, had no constitutional power to set apart territory for the perma- 
nent residence of the Indians ? Will it not then be asked, Where is the 
clause in the constitution, which authorized the establishment of a new 
and anomalous government, in the heart of North America ? The con- 
stitution looked forward to the admission of New States into the Union ; 
but does it say any thing about Indian States ? Will the men of 
1840, or 1850, be more tender of the reputation of President Jackson, 
than the men of the present day are of the reputation of President 
Washington ? Will they not say, that the pretended treaty of 1830, (if 
a treaty should now be made,) was an act of sheer usurpation ? that it 
was known to be such at the time, and was never intended to be kept ? 
that every man of sense in the country considered the removal of 1830, 
to be one of the few steps, necessary to the utter extermination of the 
Indians ? that the Indians were avowedly considered as children, and 
the word treaty was used as a plaything to amuse them, and to pacify 
grown up children among the whites ? 

If the design is not to be accomplished by a treaty, but by an act of 
Congress, the question recurs, Whence did Congress derive the consti- 
tutional power to make an Indian State, 150 miles long and 100 miles 
broad, in the heart of this continent ? Besides, if Congress has the 
constitutional power to pass such an act, has it not the power of repeal- 
ing the act ? Has it not also the power of making a new State of 
whites, encircling this Indian community, and entitled to exercise the 
same power over the Indians, which the States of Alabama and Missis- 
sippi now claim the right of exercising over the four southwestern 
tribes ? Will it be said, that the contemplated Indian community will 
have been first established, and received its guaranty, and that therefore 
Congress cannot inclose the Indians in a new State ? Let it be remem- 
bered, that the Creeks and Cherokees received their guaranty about 
thirty years before the State of Alabama came into existence ; and yet 



100 



that State claims the Indians within its chartered limits, as being under 
its proper jurisdiction ; and has already begun to enforce the claim. 
Let not the government trifle with the word guaranty. If the Indians 
are removed, let it be said, in an open and manly tone, that they are 
removed because we have the power to remove them, and there is a po- 
litical reason for doing it ; and that they will be removed again, when- 
ever the whites demand their removal, in a style sufficiently clamorous 
and imperious to make trouble for the government. 

8. The constrained migration of 60,000 souls, men, women, and 
children, most of them in circumstances of deep poverty, must be at- 
tended with much suffering. 

9. Indians of different tribes, speaking different languages, and all in 
a state of vexation and discouragement, would live on bad terms with 
each other, and quarrels would be inevitable. 

10. Another removal will soon be necessary. If the emigrants be- 
come poor, and are transformed into vagabonds, it will be evidence 
enough, that no benevolent treatment can save them, and it will be said 
they may as well be driven beyond the Rocky Mountains at once. If 
they live comfortably, it will prove, that five times as many white 
people might live comfortably in their places. Twenty-five years hence, 
there will probably be 4,000,000 of our population west of the Missis- 
sippi, and fifty years hence not less than 15,000,000. By that time, the 
pressure upon the Indians will be much greater from the boundless 
prairies, which must ultimately be subdued and inhabited, than it would 
ever have been from the borders of the present Cherokee country. 

11. If existing treaties are not observed, the Indians can have no 
confidence in the United States. They will consider themselves as 
paupers and mendicants, reduced to that condition by acts of gross op- 
pression, and then taken by the government, and stowed away in a 
crowded workhouse. 

12. The moment a treaty for removal is signed by any tribe of In- 
dians, on the basis of the contemplated plan, that moment such tribe is 
denationalized ; for the essence of the plan is, that all the tribes shall 
come under one government, which is to be administered by whites. 
There will be no party to complain, even if the pretended treaty should 
be totally disregarded. A dead and mournful silence will reign ; for 
the Indian communities will have been blotted out forever. Individuals 
will remain to feel that they are vassals, and to sink unheeded to de- 
spondency, despair, and extinction. 

But the memory of these transactions will not be forgotten. A bitter 
roll will be unfolded, on which Mourning, Lamentation, and Woe, to the 
people of the United States will be seen written in characters, which no 
eye can refuse to see. 

Government has arrived at the bank of the Rubicon. If our rulers 
now stop, they may save the country from the charge of bad faith. If 
they proceed, it will be known by all men, that in a plain case, without 
any plausible plea of necessity, and for very weak and unsatisfactory 
reasons, the great and boasting Republic of the United States of North 
America, incurred the guilt of violating treaties ; and that this guilt 
was incurred when the subject was fairly before the eyes of the Ameri- 



101 



can community, and had attracted more attention than any other public 
measure since the close of the last war. 

In one of the sublimest portions of Divine Revelation, the following 
words are written : 

Cursed be he, that removeth his neighbour's landmark : and all the 
people shall say, Amen. 

Cursed be he, that maketh the blind to wander out of the way ; and 
all the people shall say, Amen. 

Cursed be he that perverteth the judgment of the stranger, fatherless^ 
and widow ; and all the people shall say, Amen. 

Is it possible that our national rulers shall be willing to expose them- 
selves and their country to these curses of Almighty God ? Curses ut- 
tered to a people, in circumstances not altogether unlike our own ? 
Curses reduced to writing by the inspired lawgiver, for the terror and 
warning of all nations, and receiving the united and hearty Amen of all 
people, to whom they have been made known ? 

It is now proposed to remove the landmarks, in every sense ; — to dis- 
regard territorial boundaries, definitely fixed, and for many years re- 
spected ; — to disregard a most obvious principle of natural justice, in 
accordance with which the possessor of property is to hold it, till some 
one claims it, who has a* better right ; — to forget the doctrine of the 
law of nations, that engagements with dependent allies are as rigidly to 
be observed, as stipulations between communities of equal power and 
sovereignty ; — to shut our ears to the voice of our own sages of the law, 
who say, that Indians have a right to retain possession of their land, and 
to use it according to their discretion, antecedently to any positive com- 
pacts ; and, finally, to dishonor Washington, the Father of his country, 
— to stultify the Senate of the United States during a period of thirty- 
seven years, — to burn 150 documents, as yet preserved in the archives 
of State, under the denomination of treaties with Indians, and to tear 
out sheets from every volume of our national statute-book and scatter 
them to the winds. 

Nothing of this kind has ever yet been done, certainly not on a large 
scale, by Anglo-Americans. To us, as a nation, it will be a new thing 
under the sun. We have never yet acted upon the principle of seizing 
the lands of peaceable Indians, and compelling them to remove. We 
have never yet declared treaties with them to be mere waste paper. 

Let it be taken for granted, then, that law will prevail. " Of law," 
says the judicious Hooker, in strains which have been admired for their 
beauty and eloquence ever since they were written, — " Of law there can 
be no less acknowledged, than that her seat is the bosom of God ; her 
voice the harmony of the world. All things in heaven and earth do her 
homage ; the very least as feeling her care, and the greatest as not ex- 
empted from her power. Both angels and men, and creatures of what 
condition soever, each in different sort and order, yet all with uniform 
consent, admiring her as the mother of their peace and joy." 



APPENDIX 



THE SECRETARY OF WAR TO THE CHEROKEE DELEGATION. 

Department of War, April 18, 1829. 

To Messrs. John Ross, Richard Taylor, Edward Gunter, and William 
S. Coody, Cherokee Delegation. 

Friends and Brothers : Your letter of the 17th of February, addressed to the 
late Secretary of War, has been brought to the notice of this department, since 
the communication made to you on the 11th inst. ; and having conversed freely 
and fully with the President of the United States, I am directed°by him to submit 
the following as the views which are entertained, in reference to the subjects which 
you have submitted for consideration. 

You state that " the Legislature of Georgia, in defiance of the laws of the Uni- 
ted States, and the most solemn treaties existing," have extended a jurisdiction 
over your nation, to take effect in June 1830. That " your nation had no voice 
in the formation of the confederacy of the Union, and has ever been unshackled 
with the laws of individual States, because independent of them :" and that conse- 
quently this act of Georgia is to be viewed " in no other light than a wanton usur- 
pation of power, guaranteed to no State, neither by the common law of the land, 
nor by the laws of nature." 

To all this there is a plain and obvious answer, deducible from the known his- 
tory of the country. During the war of the Revolution, your Nation was the 
friend and ally of Great Britain ; a power which then claimed entire sovereignty 
within the limits of what constituted the thirteen United States. By the Decla- 
ration of Independence, and, subsequently, the treaty of 1783, all the rights of 
sovereignty pertaining to Great Britain became vested respectively in the original 
States of the Union, including North Carolina and Georgia, within whose terri- 
torial limits, as denned and known, your nation was then situated. If, as is the 
case, you have been permitted to abide on your own lands from that period to the 
present, enjoying the right of soil and privilege to hunt, it is not thence to be in- 
ferred, that this was any thing more than a permission growing out of compacts 
with your nation ; nor is it a circumstance whence now to deny to those States 
the exercise of their original sovereignty. 

In the year 1785, three years after the Independence of the States, which com- 
pose this Union, had been acknowledged by Great Britain, a treaty at Hopewell 
was concluded with your nation by the United States. The emphatic language 
it contains cannot be mistaken, commencing as follows : — " The commissioners 
plenipotentiary of the United States in Congress assembled, give peace to all the 
Cherokees, and receive them into favour and protection of the United States of 
America." It proceeds then to allot and define your limits and your hunting 
grounds. You were secured in the privilege of pursuing the game, and from en- 
croachments by the whites. No right, however, save a mere possessory one, is, 
by the provisions of the treaty of Hopewell, conceded to your nation. The soil, 
and the use of it were suffered to remain with you, while the sovereignty abided 
precisely where it did before, in those States within whose limits you were sit- 
uated. 

Subsequent to this, your people were at enmity with the United States, and 
waged a war upon our frontier settlements ; a durable peace was not entered into 



103 



with you until 1791. At that period a good understanding obtained, hostilities 
ceased, and by the treaty made and concluded, your nation was placed under the 
protection of our Government, and a guaranty given, favourable to the occupancy 
and possession of your country. But the United States, always mindful of the 
authority of the States, even when treating for what was so much desired, peace 
with their red brothers, forbore to offer a guaranty adverse to the sovereignty of 
Georgia. They could not do so ; they had not the power. 

At a more recent period, to wit, in 1802, the State of Georgia, defining her own 
proper limits, ceded to the United States all her western territory upon a condi- 
tion, which was accepted, " that the United States shall, at their own expense, ex- 
tinguish for the use of Georgia, as early as the same can be peaceably obtained on 
reasonable terms, the Indian title to all the lands within the State of Georgia." 
She did not ask the military arm of the Government to be employed, but in her 
mildness and forbearance, only, that the soil might be yielded to her, so soon as it 
could peaceably be obtained, and on reasonable terms. In relation to sovereignty, 
nothing is said or hinted at in the compact ; nor was it necessary or even proper, 
as both the parties to the agreement well knew that it was a right which already 
existed in the State in virtue of the declaration of our independence, and of the 
treaty of 1783 afterwards concluded. 

These things have been made known to you frankly and after the most friendly 
manner; and particularly at the making of the treaty with your nation in 1817, 
when a portion of your people stipulated to remove to the west of the Mississippi ; 
and yet it is alleged, in your communication to this department, that you have 
" been unshackled with the laws of individual States, because independent of 
them." 

The course you have pursued of establishing an independent, substantive go- 
vernment within the territorial limits of the State of Georgia, adverse to her will 
and contrary to her consent, has been the immediate cause, which has induced her 
to depart from the forbearance she has so long practised ; and in virtue of her au- 
thority, as a sovereign, independent State, to extend over your country her legis- 
lative enactments, which she and every state embraced in the confederacy, from 
1783 to the present time, when their independence was acknowledged and admit- 
ted, possessed the power to do, apart from any authority, or opposing interfer- 
ence by the General Government. 

But suppose, and it is suggested merely for the purpose of awakening your bet- 
ter judgment, that Georgia cannot, and ought not, to claim the exercise of such 
power — what alternative is then presented ? In reply, allow me to call your at- 
tention for a moment to the grave character of the course which, under a mista- 
ken view of your own rights, you desire this government to adopt. It is no less 
than an invitation that she shall step forward to arrest the constitutional acts of 
an independent State, exercised within her own limits. Should this be done, and 
Georgia persist in the maintenance of her rights and her authority, the conse- 
quences might be that the act would prove injurious to us, and, in all probability, 
ruinous to you. The sword might be looked to as the arbiter in such an inter- 
ference. — But this can never be done. The President cannot and will not beguile 
you with such an expectation. The arms of this country can never be employed 
to stay any State of this Union from the exercise of those legitimate powers, 
which attach and belong to their sovereign character. An interference to the 
extent of affording you protection, and the occupancy of your soil, is what is de- 
manded of the justice of this country, and will not be withheld ; yet in doing this, 
the right of permitting to you the enjoyment of a separate Government within 
the limits of a State, and of denying the exercise of sovereignty to that State 
within her own limits, cannot be admitted. It is not within the range of powers 
granted by the States to the General Government, and therefore not within its 
competency to be exercised. 

In this view of the circumstances connected with your application, it becomes 
proper to remark, that no remedy can be perceived, except that which frequently 
heretofore has been submitted for your consideration — a removal beyond the Mis- 
sissippi, where alone can be assured to you protection and peace. It must be ob- 
vious to you, and the President has instructed me to bring it to your candid and 
serious consideration, that to continue where you are, within the territorial limits 



104 



of an independent State, can promise you nothing but interruption and disquie- 
tude. Beyond the Mississippi your prospects will be different. There you will 
find no conflicting interests. The United States' power and sovereignty, uncon- 
trolled by the high authority of State jurisdiction, and resting on its own ener- 
gies, will be able to say to you, in the language of your own nation, " the soil 
shall be yours, while the trees grow or the streams run." But situated where 
you now are, he cannot hold to you such language, or consent to beguile you by 
inspiring in your bosoms hopes and expectations which cannot be realized. Jus- 
tice and friendly feelings cherished towards our red brethren of the forest, de- 
mand that, in all our intercourse, frankness should be maintained. 

The president desires me to say, that the feelings entertained by him towards 
your people, are of the most friendly kind ; and that, in the intercourse heretofore, 
in past times so frequently had with the chiefs of your nation, he failed not to 
warn them of the consequences which would result to them from residing within 
the limits of sovereign States. 

He holds to them now no other language than that which he has heretofore em- 
ployed ; and in doing so, feels convinced that he is pointing out that course which 
humanity and a just regard for the interests of the Indian will be found to sanc- 
tion. In the view entertained by him of this important matter, there is but a 
single alternative — to yield to the operation of those laws which Georgia claims, 
and has a right to extend throughout her own limits, or to remove, and by asso- 
ciating with your brothers beyond the Mississippi, to become again united as one 
nation, carrying along with you that protection which, there situated, it will be 
in the power of the Government to extend. The Indians being thus brought to- 
gether at a distance from their white brothers, will be relieved from very many of 
those interruptions, which, situated as they are at present, are without remedy. 
The Government of the United States will then be able to exercise over them a 
paternal and superintending care, to happier advantage ; to stay encroachments, 
and preserve them in peace and amity with each other ; while, with the aid of 
schools, a hope may be indulged that, ere long, industry and refinement will take 
the place of those wandering habits now so peculiar to the Indian character, the 
tendency of which is to impede them in their march to civilization. 

Respecting the intrusion on your lands submitted also for consideration, it is 
sufficient to remark, that of these the Department had already been advised, and 
instructions have been forwarded to the Agent of the Cherokees, directing him to 
cause their removal ; and it is earnestly hoped that, on this matter, all cause for 
future complaint will cease, and the order prove effectual. With great respect, 
your friend, JOHN H. EATON. 



RESOLUTIONS OF THE OLD CONGRESS. 

The following extracts are taken from the proceedings of the Congress of the 
Revolution, the most illustrious body of men, in the judgment of Lord Chatham, 
that ever assembled to deliberate on national affairs. Shall our rulers and our 
people forget, in the days of our power and prosperity, the pledges which were gi- 
ven, and the solemn promises made, in the hour of our country's peril ? 

In Congress, June 30, 1775, "Resolved, That the committee for Indian affairs do 
prepare proper talks to the several tribes of Indians, for engaging the continu- 
ance of their friendship to us, and neutrality in our present unhappy dispute with 
Great Britain. 

In Congress, July 12, 1775, " Resumed the consideration of the report of the 
committee on Indian affairs, and the same being gone through, was agreed to, as 
follows : 

11 That the securing and preserving the friendship of the Indian nations appear 
to be a subject of the utmost moment to these colonies. 



105 



" That there is too much reason to apprehend that administration [that i&, 
the British government,] will spare no means to excite the several nations of In- 
dians to take up arms against these colonies; and that it becomes us to be very 
active and vigilant in exerting every prudent means to strengthen and confirm 
the friendly disposition towards these colonies, which has long prevailed among 
the northern tribes, and which has lately been manifested by some of those to 
the southward." 

* That the commissioners have power to treat with the Indians, in their re- 
spective departments, in the name and on behalf of the united colonies, in order 
to preserve peace and friendship with the said Indians, and to prevent their tak- 
ing any part in the present commotions." 

In Congress, July 13, 1775, " Ordered, That a talk be prepared for the Indian 
nations, so as to suit the Indians in the several departments." 

In Congiess, Sept. 14, 1775, '* The commissioners for Indian affairs, in the 
nothern department, transmitted to the congress the minutes of a treaty, held 
with the Six Nations, at Albany, in August." 

In Congress, Feb. 5, 1776, Resolved, That a friendly commerce between the 
people of the united colonies and the Indians, and the propagation of the gospel, 
and the cultivation of the civil arts among the latter, may produce many and 
inestimable advantages to both : and that the commissioners for Indian affairs 
be desired to consider of proper places, in their respective departments, for the 
residence of ministers and schoolmasters, and report the same to Congress." 

In Congress, March 8, 1776, " Resolved, That Indians be not employed as sol- 
diers in the armies of the united colonies, before the tribes to which they belong 
shall, in a national council,held in the customary manner, have consented there- 
unto, nor then, without express approbation of Congress." 

In Congress, April 10, 1776, " Resolved, That the commissioners for Indian 
affairs in the middle depar ment, or any one of them, be desired to employ, for 
reasonable salaries, a minuter of the gospel, to reside among the Delaware 
Indians, and instruct them in the Christian religion ; a schoolmaster to teach 
their youth reading", writing, and arithmetic ; also a blacksmith to do the work 
of the Indians in the middle department." 

In Congress,May, 11, 1776, " Resolved, That the standing committee for Indian 
affairs be directed to take measures for carrying into execution the resolution of 
the 6th, for holding a treaty with the Indians in the different departments, as 
soon as practicable." 

In Congress, May 27 ', 1776, "Resolved, That the standing committee for Indian 
affairs, be directed to prepare a speech to be delivered to the Indians, and to 
procure such articles as they judge proper for a present." 

In Congress, Sept. 19, 1776, "Resolved, That it be recommended to the inhabi- 
tants of the frontiers, and to the officers at all the posts there, to treat the Indians 
who behave peaceably and inoffensively, with kindness and civility, and not to 
suffer them to be ill u^J or insulted." 

" As it may be a means of conciliating the friendship of the Canadian Indians, 
or at least of preventing hostilities from them, in some measure to assist the 
President of Dartmouth college, in New Hampshire, in maintaining their youth, 
who are now there under his tuition, and whom the revenues of the college are 
not, at this time, sufficient to support; that for' this purpose, five hundred dol- 
lars be paid to the Rev. Dr. Eleazar Wheelock, President of the said college." 

In Congress, Oct. 20, 1777, "Resolved, That it be earnestly recommended to the 
president and assembly of the State of Georgia, to use their utmost exertions to 
cultivate peace and harmony with theTndian nations; and to enable them to 
effect this salutary purpose, that they forthwith enact laws, inflicting severe 
penalties on such of their inhabitants as may endeavour to provoke a war, which 
may endanger the state of Georgia, and entail great injury and expense on the 
United States." 

In Congress, Feb. 2, 1778, " Resolved, That the commissioners speak and act 
in such manner as they shall think most likely to obtain the friendship, or at 
least, the neutrality of the Indians, and that Congress will support the commis- 
sioners in any measures they shall conceive best calculated to answer these ends." 

In Congress, May 17, 1779, "Resolved, That the commissioners for Indian 
affairs in the northern department, be directed to consult General Washington 
14 



106 

upon all treaties with the Indians, and to govern themselves by such instructions, 
as he shall give them, relative to any partial or general treaty of peace to be 
concluded with them." [It would seem that the Old Congress was so simple 
as really to believe, that General Washington had understanding sufficient to 
enable him to decide what was a treaty and what was not:] 

In Congress, Feb. 21, 1780, " Resolved, That the commissioners of Indian af- 
fairs in the northern department, be authorized and instructed to take such se- 
curities from the hostile tribes of Indians, to ensure the faithful performance of 
their engagements with the said commissioners, as seem most conducive to the 
end proposed, in lieu of hostages." 

In Congress, Oct. 15, 1783, " Resolved, That a convention be held with the 
Indians residing in the northern and middle departments, who have taken up 
arms against the United States, for the purposes of receiving them into the fa- 
vour and protection of the United States, and of establishing boundary lines of 
property, for separating and dividing the settlements of the citizens from the 
Indian villages and hunting grounds, and thereby extinguishing, as far as possi- 
ble, all occasion for future animosities, disquiet, and contention." 

In Congress, July 15, 1788, " Whereas it is represented to congress, by the 
delegates of the State of Georgia, that the principal parts of the frontiers of that 
State have been for several year* past invaded, and kept in a state of alarm by 
the Creek Indians ; that the fighting men of that nation, supposed to amount to 
not less than six thousand, have been so far instigated by refugees and fugitive 
traders, who had formerly escaped from these States and taken refuge among 
them, as to keep up constant and bloody incursions on the different parts of that 
frontier, and that the settlements of four of the exterior counties are almost en- 
tirely broken up: 

" Resolved, That the superintendant and commissioners for the southern de- 
partment be instructed, if they shall find it necessary, to notify to the said In- 
dians, that shouid they persist in refusing to enter into a treaty upon reasonable 
terms, the arms of the United States shall be called forth for the protection of 
that frontier." 

In Congress, Sept. 1, 1788, "Whereas the United States in congress assembled 
by their commissions duly appointed and authorized, did, on the twenty-eighth 
day of November, one thousand seven hundred and eighty-five, at Hopewell, on 
the Keowee, conclude articles of a treaty with all the Cherokees, and among 
other things stipulated and engaged by article fourth, ' that the boundary al- 
lotted to the Cherokees for their hunting grounds, between the said Indians and 
the citizens of the United States, within the limits of the United States of 
America, is and shall be the following, viz : [The boundaries are here inserted]. 
And whereas it has been represented to congress, that several disorderly persons 
settled on the frontiers of North Carolina, in the vicinity of Chota, have, in 
open violation of the said treaty, made intrusions upon the sa-id Indian hunting 
grounds, and committed many unprovoked outrages upon the said Cherokees, 
who, by the said treaty, have put themselves under the protection of the United 
States, which proceedings are highly injurious and disrespectful to the authority 
of the Union, and it being the firm determination of congress to protect the said 
Cherokees in their rights, according to the true intent and meaning of the said 
treaty; the U. S. in congress assembled, have therefore thought fit to issue, and 
they do hereby issue, this their proclamation, strictly forbidding all such un- 
warrantable intrusions, and hostile proceedings against the said Cherokees ; and 
enjoining all those who have settled upon the said hunting grounds of the said 
Cherokees, to depart, with their familioe and effects, without loss of time, as 
they shall answer their disobedience to the injunctions and prohibitions ex- 
pressed in this resolution at their peril : 

" Resolved, That the Secretary of War be, and he is hereby directed, to have 
a sufficient number of the troops in the service of the United States, in readiness 
to march from the Ohio, to the protection of the Cherokees, whenever congress 
shall direct the same ; and that he take measures for obtaining information of 
the best routes for troops to march from the Ohio, to Chota ; and for dispersing 
among all the white inhabitants settled upon, or in the vicinity of the hunting 
grounds secured to the Cherokees, by the treaty concluded between them and 
the United States, Nov. 28, 1785, the proclamation of congress of this date." 



107 



The foregoing 1 proclamation and resolution are, in the highest degree, honor- 
able to the congress of the United States. Measures of a directly opposite 
character must therefore be highly dishonorable. A similar proclamation, fol- 
lowed by a corresponding order from the war department, would now afford a 
perfect shield to the Cherokees. 



AN EXAMINATION OF THE CASES OF FLETCHER t». PECK, AND 
JOHNSON vs. M'INTOSH. 

The case of Fletcher vs. Peck, was decided in the Supreme Court of the 
United States, in the year 1810. /See Cranch's Reports, vol. 6. This case 
touches Indian rights but very obliquely and incidentally. It was a suit brought 
by one white man against another, on a covenant which related to wild lands 
in the western part of the chartered limits of Georgia. The Indians were not 
a party. They had no counsel. The decision of the court was not designed, 
to affect them at all. 

It was disputed whether Georgia had such a right in lands within her char- 
tered limits, (which lands were occupied by Indians,) as would authorize the 
State to make a grant of those lands, subject to the Indian title. The Court 
decided, that the State had such a right. The calling of this right a seisin in 
fee, was only a consequence of the habit, which all professional men have, of 
calling new things by old technical names. The fact is, that the right of a 
community to purchase lands of the Indians, to the exclusion of all other pur- 
chasers, has but a very slender resemblance to a seisinin fee, that is, an estate to 
a man and his heirs. The court did not think, however, that the substance of 
a party's defence should be lost, merely because he had, in his pleadings, used 
the old technical wards of English law, and applied them in a sense,*not in ac- 
cordance with their original meaning. 

That such is the scope of the two last paragraphs of the opinion, delivered 
by Chief Justice Marshall, will be evident on a moment's reflection. The para- 
graphs are these : 

" Some difficulty was produced by the language of the covenant and of the 
pleadings. It was doubted whether a State could be seized in fee of lands, sub- 
ject ta the Indian title : and whether a decision, that they were seized in fee, 
might not be construed to amount to a decision that their grantee might main- 
tain an ejectment for them, notwithstanding that title. 

The majority of the Court is of the opinion that the nature of the Indian 
title, which is certainly to be respected by all courts, until it be legitimately ex- 
tinguished, is not such as to be absolutely repugnant to seisin in fee on the part 
of the State." 

The Court here acknowledged an embarrasment from the language of the 
covenant and pleadings, doubtless alluding to the technical phrase, seisin in fee, 
and confessed an apprehension, that the decision might be construed to mean, 
that the individuals, to whom the state had granted its* right, would recover the 
land from the Indians, by a writ of ejectment, whenever the grantees should 
bring such a suit. Agamst such a construction, however, the Court effectually 
guarded, by saying, that "the Indian title is certainly to be respected by all courts 
until it be legitimately extinguished." 

In other words, the Indian title is not in the least affected by this decision. 
Whenever it shall be extinguished, it will be extinguished according to the 
constitution and laws of the United States, and the treaties with the Indians. 

That this is a fair account of the decision, in the case of Fletcher and Peck, 
so far as relates to the question now before the public, appears to us perfectly 
clear. But if we have mistaken the meaning of the Court, we hold ourselves 
open to conviction, whenever that meaning shall be more satisfactorily stated. 

In the mean time, let those who are alarmed for the Indians, because their 
title to their country is " only the right of occupancy" be comforted with the 
reflection, that, by virtue of this right, the Cherokees may occupy the lands of 
their fathers till the end of the world, unless they shall voluntarily sell these 
lands to the United States, for the use of Georgia. Their right of occupancy 



108 



reaches back to time beyond the memory of man. This is as good a title, in its 
own nature, as any title that can be conceived. Blackstone says, u It is agreed 
on all hands, that occupancy gave the original title to the permanent property 
in the substance of the earth itself, which excludes every one else but the owner 
from the use of it." And the right to occupy their country forever has been solemn- 
ly and repeatedly guaranteed to the Cherokees,by the highest authorities of our 
nation. 

It is said they have only the title of, occupancy, because they cannot sell their 
lands, except to the United States, and in a prescribed manner. Nor can they 
give away their lands, except to the United States. Their rights are restrained 
in regard to the sale, or cession, of lands, for two good reasons. 1. They have 
solemnly agreed with the United States, that they will not sell, or cede their 
lands, except as above mentioned. This was a fair stipulation, which they had 
full power to make, and which was intended to be, and actually is, for their 
benefit. 2. The United States have forbidden the whites to purchase of the 
Indians, which the United States had a perfect right to do, and which was done 
for the protection of the Indians. Foreign nations are, of course, excluded from 
passing our national boundaries ; and all the large tribes of Indians have cove- 
nanted not to form any connexion with foreigners, which shall be inconsistent 
with living under the protection of the United States. 

In the case of Johnson and M'Intosh, which was decided in 1823, the Supreme 
Court thus expressed itself : — 

" It has never been doubted that either the United States or the several States 
had a clear title to all the lands within the boundary lines described in the treaty, 
[of 1783] subject only to the Indian right of occupancy, and that the exclusive 
power to extinguish that right was vested in that government which might con- 
stitutionally exercise it." — 8 Whealon's Reports, p. 585. 

The question, in the case of Johnson and M'Intosh, was, whether grants of 
land in the wilderness, which is nxiw the state of Illinois, made to private pur- 
chasers, citizens of Virginia, in the years 1773 and 1775, by chiefs of the Illinois 
and Piankeshaw tribes of Indians, are good and valid grants, binding on the 
courts of the United States. The court decided, that such grants were not 
valid ; and, in the course of the decision, went, somewhat at length into the con- 
sideration of Indian title. We can confidently declare it as our opinion, that, 
in this very elaborate and candid discussion, the Court advanced nothing which 
has an unfavourable bearing upon the claims of the Cherokees. 

The Court said, indeed, that "the United States, or the several states, have a 
clear title to all the lands within our national limits." What the Court meant 
by a " clear title," is abundantly explained to be the exclusive right of acquiring 
the Indian lands. European nations, the colonies of Europeans, and the inde- 
pendent states of North America, have all claimed that the government, to the 
exclusion of private purchasers, has the right of acquiring the possession of 
Indian territory ; and that foreign nations could not intrude upon the discoveries 
of each other respectively. These principles have been so constantly asserted 
by all the governments above mentioned, that they have become principles of 
established law ; and the Court is bound by them, and cannot go into the con- 
sideration of the principles of abstract justice. That is, as we all know, it is 
the duty of the Court to declare what the law is, and apply it — not to make 
the law. The " clear title," then, which the government has to Indian lands, 
comprises, first, the power of excluding foreign nations from intruding upon 
these lands; secondly, the power of forbidding private men from purchasing 
them; and thirdly, since the adoption of the federal constitution, the exclusive 
power of the general government to extinguish Indian title by treaty. All 
these claims of the government have been admitted by the Cherokees, Creeks, 
Chickasaws, and Choctaws, in the various treaties now in force. The Indians 
make no complaint, in regard to these claims. Though their natural rights are 
circumscribed in this manner, yet they very well know it is for their benefit; 
and they would be the first to desire, that their communities might be defended 
from the intrigues of foreign nations, and the frauds of private speculators. 
They would no more think of complaining that their natural rights are limited, 



\ 



109 



by the claims of the United States, and the stipulations made, for the benefit of 
both parties, in accordance with those claims, than the people of the United 
States generally would think of complaining, that the rights of the several 
states are abridged by the powers given to the general government. 

In the passage quoted from Wheaton's Reports, the Court said that the title 
of the United States was subject to the Indian right, of occupancy. What is 
meant by a right of occupancy? Let the reader look again into Wheaton, p. 
574, and he will find, that the Court said of the « original inhabitants" of this 
continent generally, " They were admitted to be the rightful occupants of the 
soil, with a legal as well as just claim to retain possession of it, and to use it ac- 
cording to their own discretion." 

This is said, be it remembered, respecting Indians generally, found in their 
native condition, and undefended by any guaranty of territory, or any express 
stipulation in their favor. The Indians, then, have the right of occupying their 
country, of retaining possession of it, of using it according to their discretion, and 
thus far they have a legal as well as just claim. But they cannot sell, except to 
the government. 

Here we have a clear distinction between the rights of the Indians and the 
rights of Europeans, as fixed by Europeans themselves, and a thousand times 
•admitted by different tribes of Indians. The original inhabitants have the 
right of occupying their country, and using it, as long as they please, accord- 
ing to their discretion ; the descendants of Europeans have confided to their 
government the exclusive power of extinguishing the Indian title. 

These principles are sufficient for the absolute defence of the Cherokees, so 
long as they behave peaceably, and are not disposed to sell their country. 
But over and above all this, the United States have solemnly guaranteed to 
them all their lands ; — have covenanted to expel intruders ; — have made 
laws for this purpose ; — and have, in a hundred instances, admitted that the 
Cherokee country was under Cherokee jurisdiction, and irresistibly implied, 
that it was not under the jurisdiction of Georgia. The same thing has been 
implied, in numberless instances, in the language of the Legislature and Ex- 
ecutive of Georgia, as could easily be shown, if our limits permitted. 
These agents of the State have always been in the habit of distinguishing be- 
tween the " chartered limits," or the " conventional limits," and the actual 
limits of the State. It is not five years since Governor Troup wrote a letter to 
the Secretary of War, in which he argued, that the soil and jurisdiction of the 
Creek country went together ; and that both " passed" to the State of Georgia 
by the treaty of the Indian Spring. If soil and jurisdiction passed to Georgia 
by treaty, it requires no conjuror to say, that they were not in Georgia before 
the treaty was made ; and, of course, that the soil and jurisdiction of the 
Cherokee country, concerning which no treaty of cession has been made, are 
not in Georgia. 

We make two more quotations from the opinion of the Court, in the case of 
Johnson and M'Intosh : — 

"It has never been contended, that the Indian title amounted to nothing. 
Their right of possession has never been questioned. The claim of govern- 
ment extends to the complete ultimate title, charged with this right of posses- 
sion, and to the exclusive power of acquiring that right." p. 603. 

We understand the Court here as declaring, that all the world admits the 
right of the Indians to retain their possession. The government claims the 
sole power of acquiring of the Indians their unquestioned right of possession ; 
but this claim of the government is always to be understood as charged, or in- 
cumbered, with the existing occupancy of the Indians. In other words, the 
right of the. Indians to occupy their country as long as they please, is in no 
wise diminished or affected, by the claim of the government to be the exclusive 
purchaser ; and the claim of exclusive purchase, or, as it has usually been call- 
ed, this right of pre-emption, is the "ultimate title," of which the Court 
speaks. 

Again : " The absolute ultimate title has been considered as acquired by dis- 
covery, subject only to the Indian title of occupancy, which title the discover- 
ers possessed the exclusive right of acquiring. Such a right [that is, the 



110 



Indian title of occupancy] is no more incompatible with a seisin in fee, than a 

lease for years is, and might as effectually bar an ejectment." p. 592. 

Common readers, not being acquainted with legal terms, cannot take the 
force of this quotation. Let us explain it. If Mr. Prime holds a house in 
Wall-street to himself and his heirs for ever, he is said to be seised in fee of 
that house. He may rn^ke a lease of the house, for a valuable consideration, 
to the corporation of the Merchants' Exchange, for the term of a thousand 
years, and the corporation may take possession : still Mr. Prime is seized in fee 
of the house, and has the ultimate title to him and his heirs. Tne lease of the 
house for a thousand years may be worth $100.000 ; and Mr. Prime's « ulti- 
mate title" which is to be enjoyed by his- heirs a thousand years hence, 
would not probably sell at auction for enough to pay a lawyer for making a 
deed. 

Now the Court, in effect, say, reverting to the doctrine laid down in the 
case of Fletcher and Peck, " The decision that the right of pre-emption, which 
the United States are to exercise for the use of Georgia, may be technically 
called a seisin in fee, no more proves that Georgia may take possession of the 
Cherokee country and drive out the natives, or that the grantees of Georgia 
may bring a suit of ejectment against the Indians, and thus get possession, 
than the fact that Mr. Prime is seised in fee of a house in Wall-street, would . 
prove that he might bring an ejectment against the corporation of the Mer- 
chants' Exchange, when he had himself put the said corporation in possession 
of the premises, by a lease for a thousand years." 

The Cherokees might " as effectually bar an ejectment," to use the very 
words of the Court, by pleading that possession, to which they have a legal and 
just claim, as, in the case supposed, the Merchants' Exchange could resist the 
suit of Mr. Prime, by pleading his own lease for a thousand years. 

It is natural that people should mistake in regard to the decision of the 
Court, by the mere sound of the words used; that i=, by taking the popular mean- 
ing of words, rather than the legal and technical meaning. Thus, for instance, 
the " undoubted title" and the kt ultimate title" of an acre of land bordering 
on Wall-street, might not be worth five cents; because it might be charged or 
incumbered, with " the mere right of occupancy" for a certain period,, which 
right of occupancy might be worth a million of dollars. But as to any mis- 
takes of this kind, the Court is not in fault. In making legal decisions, it is 
often a matter of necessity that technical words should be used. 

The Court was not called in either of the cases cited, to say any thing about 
treaties with the Indians; but should these treaties ever come before the Court, 
it will be seen that the '•'■judges''' of this Court, and of every other Court in the 
United States, are as much " bound" by them, as by the- constitution itself. — 
N.Y. Observer. 



EXTRACTS FROM THE OPINION OF CHANCELLOR KENT, IN 
THE CASE OF GOODELL vs. JACKSON. Johnson's Reports, vol. xx. 
page 693. 

Indians not under the laws of New York. 

" The Oneidas, and the other tribes composing the six nations of Indians, 
were, originally, free and independent nations. It is for the counsel, who con- 
tend that they have now ceased to be a distmctpeople, and become completely 
incorporated with us, and clothed with all the rights, and bound to all the du- 
ties of citizens, to point out the precise time when that event took place. I 
have not been able to designate the period, or to discover the requisite evidence 
of such an entire and total revolution. Do our laws, even at this day, allow 
these Indians to participate equally with us,in our civil and political privileges? 
Do they vote at our elections, or are they represented in our legislature, or 
have they any. concern, as jurors or magistrates, in the administration of jus- 
tice? Are they, on the other hand, charged with the duties and burthens of 
citizens? Do they pay taxes, or serve in the militia, or are they required to 
take a share in any of the details of our local institutions? Do we interfere 



Ill 



with the disposition, or descent, or tenure of their property, as between them- 
selves? Do we prove their willa, or grant letters of administration upon their 
intestates' estates? Do our Sunday laws, our school laws, our poor laws, our 
laws concerning infants and apprentices, or concerning idiots, lunatics, or habi- 
tual drunkards, apply to them? Are they subject to our laws, or the laws of 
the United States, against high treason; and do we treat and punish them as 
traitors, instead of public enemies, when they make war upon us? Are they 
subject to our laws of marriage and divorce, and would we sustain a criminal 
prosecution for bigamy, if they should change their wives or husbands, at their 
own pleasure, and according to their own customs, and contract new matrimo- 
nial alliances? I apprehend that every one of these questions must be answer- 
ed in the negative, and that on all these points they are regarded as dependant 
allies, and alien communities." pp. 709, 710. 

" In my view of the subject, they have never been regarded as citizens or 
members of our body politic, within the contemplation of the constitution. 
They have always been, and are still considered by our laws as dependent tribes, 
governed by their own usages and chiefs, but placed under our protection, and^ 
subject to our coercion, so far as the public safety required it, and no farther." 
p. 710. 

Indians always considered as separate communities. 

" Through the whole series of our colonial history, these Indians were con- 
sidered as dependent allies, who advance for themselves the proud claim of 
free nations, but who had voluntarily, and upon honourable terms, placed them- 
selves and their lands under the protection of the British government. The 
colonial authorities uniformly negotiated with them, and made and observed 
treaties with them, as sovereign communities, exercising the right of free delibe- 
ration and action; but, in consideration of protection, owing a qualified subjec- 
tion, in a national, but not in any individual capacity, to the British crown. 

" No argument can be drawn against the sovereignty of these Indian nations 
from the fact of their having put themselves and their lands under British pro- 
tection. Such a fact is of frequent occurrence in the transactions between in- 
dependent nations. 

" One community may be bound to another by a very unequal alliance, and 
still be a sovereign state. Though a weak state, in order to provide for its 
safety, should place itself under the protection of a more powerful one, yet ac- 
cording to Vattel, (B. 1. ch. 1. s. 5. and 6.) if it reserves to itself the right of 
governing its own body, it ought to be considered as an independent state. 
There are several kinds of submission, says this same jurist. (B. 1. ch. 16. s. 194.) 
The submission may leave the inferior nation a part of the sovereignty, res- 
training it only in certain respects, or it may totally abolish it, or the lesser may 
be incorporated with the greater power, so as to form one single state, in which 
all the citizens will have equal privileges. Now, it is very apparent, from our 
whole history, that the submission of the six nations has been of the former 
kind, and that as an inferior nation, they were only restrained of their sover- 
eignty in certain respects. Though born within our territorial limits, the Indians 
are considered as born under the dominion of their tribes. They are not our 
subjects, born within the purview of the law, because they are not born in obe- 
dience to us. They belong, by birth, to their own tribes, and these tribes are 
placed under our protection, and dependent upon us ; but still we recognize 
them as national communities. In this situation we stood in relation to each 
other at the commencement of our revolution. 

" The American Congress held a treaty with the six nations in August, 1775* 
in the name, and on behalf of the United Colonies, and a convention of neu- 
trality was made between them. 1 This is a fajnily quarrel between us and old 
England,' said the agents, in the name of the colonies ; ' you Indians are not 
concerned in it. We desire you to remain at home, and not join either side.' 
Again, in 1776, Congress tendered protection and friendship to the Indians, and 
resolved, that no Indians should be employed as soldiers in the armies of the 
United States, before the tribe, to which they belonged, should, in a national 
council, have consented thereunto, nor then, without the express approbation of 



112 



Congress. What acts of government could more clearly and strongly desig- 
nate these Indians as totally detached from our bodies politic, and as separate 
and independent communities ? 

" In 1778, Congress resolved, that they would chastise the Senecas, who had 
joined the enemy, and would reduce them to terms of peace ; and when some 
Seneca chiefs appeared at Philadelphia, they directed the board of war to in- 
quire whether they came in the character of representatives or ambassadors of 
their nation ? And when, in 1779, Congress had resolved upon terms of peace 
with the Indians, the conditions were such as would be dictated to a public 
enemy, known as such by the laws of war ; they had not the remotest resem- 
blance to the terms or spirit of a negotiation with citizens or subjects who had 
broken their allegiance. In 1783, congress expressly waived the right of con- 
quest over the Indians, and recommended proffers of peace and a friendly treaty, 
for the purpose of receiving them into favor and protection. Lastly, in Octo- 
ber, 1784, a treaty of peace was made at Fort Stanwix, between the United 
States and the sachems and warriors of the six nations ; and the United States 
gave peace to those of the six nations who had been hostile, and received them 
under protection, and required, that the hostile tribes should stipulate, that the 
Oneidas, and Tuscaroras, should be secured in the possession of their lands. 

" There was nothing, then, in any act or proceeding, on the part of the United 
States, during the revolutionary war, which went to impair, and much less to 
extinguish the national character of the six nations, and consolidate them with 
our own people. Every public document speaks a different language, and ad- 
mits their distinct existence and competence as nations, but placed in the same 
state of dependence, and calling for the same protection which existed before 
the war." pp. 711—713. 

" In 1794, there was another treaty made between the United States and the 
six nations, in which perpetual peace and friendship were declared between the 
contracting parties, and the United States acknowledged the lands reserved to 
the Oneida, Onondaga and Cayuga nations, in and by their treaties with this state, 
to be their property ; and the treaty contains this provision, which has a very 
important, and a very decisive bearing upon the point under discussion : The 
United States and the six nations agree, that for injuries done by individuals, 
on either side, no private retaliation shall take place, but complaint 
shall be made by the injured party to the other ; that is, by the six na- 
tions, or any of them, to the President of the United States, and by or on 
behalf of the President, to the Principal Chiefs of the six nations, or of the nation 
to which the offender belongs. What more demonstrable proof can we require, 
of existing and acknowledged sovereignty residing in those Indians? We have 
here the forms and requisitions peculiar to the intercourse between friendly and 
independent states, and they are conformable to the received institutes of the 
law of nations. The United States have never dealt with those people, within 
our national limits, as if they were extinguished sovereignties. They have con- 
stantly treated with them as dependent nations, governed by their own usages, 
and possessing governments competent to make and to maintain treaties. They 
have considered them as public enemies in war, and allied friends in peace. If 
mere territorial jurisdiction would make the six nations citizens of this state, the 
same effect must have been produced aa to the numerous tribes of Indians in- 
cluded within the vast territorial limits of the United States; and it is worth a 
moment's attention to observe the relations existing between the United States 
and the Indians, to the south and to the west. 

"In the treaty between the United States and the Wiandots, Ottawas, Chip- 
j)ewas, and others, in 1785, it was provided, that if an Indian commit murder, or 
robbery, upon a citizen of the United States, they shall deliver him up to be pun- 
ished according to our law. "The surrender of criminals is here made part of a 
national compact, and the distinction is preserved between Indians and citizens; 
and while we assume the right to redress the injuries of the one, we abandon 
the other to the protection of their own people. The treaties with the Chero- 
kees, in 1785, and 1791, go further, and provide, that citizens of the United 
States committing robbery, or murder, on the Cherokees, shall be punished by 
us in like manner as if the same were committed upon one of our own citizens. 



113 



They also contain a new and striking provision, and that is, that citizens set- 
tling upon their lands, thereby forfeit the protection of the United States, and 
the Cherokees may punish them as they please. The same provision, relative 
to the surrender and punishment of persons guilty of murder, or robbery, is in- 
serted in the treaties with the Choctaws, Chickasaws, Shawanese, Creeks, Ot- 
tawas, Chippewas, &c. And, in the treaties with the latter tribes, in 1789, and 
1795, citizens settling on their lands are declared to be out of the protection of 
the United States, and liable to punishment at the discretion of the Indians. 

" It would seem to me to be almost idle to contend, in the face of such provi- 
sions, that these Indians were citizens or subjects of the United States, and not 
alien and sovereign tribes. 

" In the ordinance of Congress, in 1787, passed for the government of the 
territory of the United States northwest of the Ohio, it was declared, that the 
Indians within that territory should never be invaded or disturbed in their pro- 
perty, rights, or liberties, unless in just and lawful war. By a just? and lawful 
war, is here meant, a controversy according to the public law of nations, between 
independent States, and not an insurrection and rebellion. The United States 
have never undertaken to negotiate with the Indian tribes, except in their na- 
tional character. They have always asserted their claims against them in the 
only two ways known to nations, upon the ground of stipulation by treaty or by 
force of arms. The ordinance further provided, that laws should be made to 
prevent wrongs done to the Indians ; and this implies a state of dependence and 
imbecility on the part of the Indians, and that correspondent claim upon us for 
protection, arising out of the superiority of bur condition, which afford the true 
solution to most of our regulations concerning them." pp. 713 — 715. 

Manner in which the Indian sovereignties should he extinguished. 

" I do not therefore consider the act of 1822, as affecting the question, whether 
the remainder of the six nations still rightfully exist as a separate people, or whe- 
ther they have become am algamated with us, and incorporated into the body 
politic, as members and citizens. In my opinion, that statutehad no such intention; 
and when the time shall arrive for us to break down the partition wall between 
us and them, and to annihilate the political existence of the Indians as nations 
and tribes, I trust we shall act fairly and explicitly, and endeavour to effect it 
with the full knowledge and assent of the Indians themselves, and with the 
most scrupulous regard to their weaknesses and prejudices, and with the entire 
approbation of the government of the United States. Iam satisfied, that such 
a course would be required by prudence, and would become necessary, not only 
for conscience sake, but for the reputation of our justice." p. 717. 

Guardian care of our government, and fidelity of the Indians. 

" Thus, in the resolution of Congress of January, 1776, regulating trade with 
the Indians, it was declared, that no person should be permitted to trade with 
them without license, and that the traders should take no unjust advantages of 
their distress and intemperance. In a speech, on behalf of congress, to the six 
nations, in April 1776, it was said to them, that Congress were determined to 
cultivate peace and friendship with them, and prevent the white people from 
wronging them in any manner, or taking their lands : that Congress wished to 
afford protection to all their brothers, the Indians, who lived with them on this 
great Island ; and that the white people should not be suffered, by force or 
fraud, to deprive them of any of their lands. And in November, 1779, when 
Congress were discussing the conditions of peace to be allowed to the six na- 
tions, they resolved, that one condition should be, that no land should be sold 
or ceded by any of the said Indians, either as individuals, or as a nation, unless 
by consent of congress. 

" This resolution, almost coeval with our constitution, shows the important 
fact, that individual Indians, as well as tribes and communities, were, and ought 
to be, equally protected from imposition in the sale of their lands; and if such 
were the views of congress in 1779, why should not the same views have been in 
the contemplation of our constitution in 1777 ? 
15 



114 



" The government of the United States had, in the earliest and purest days of 
the republic, watched with great anxiety over the property of the Indians in- 
trusted to their care. It must have been immaterial from what source the pro- 
perty proceeded, and whether it was owned by tribes, or families, or individuals. 
If it was Indian property in land, it had a right to protection from us as 
against our own people. The Indians under the colony administrations, 
confided their lands to our protection. As early ^ as 1684, the Onondagas and 
Cayugas, for instance, told the Governor of New York, that they were a free 
people, and had put their lands and themselves under the protection of the 
Duke of York and of the great sachem Charles, that lived oh the other side of the 
great water. The friendship of the six nations towards-the colony government 
and the protection of the government to them, continued unshaken for upwards ' 
of a century, and this mutual good faith has received the most honorable, and 
the most undoubted attestations. Governor Colden, in his history of the six, 
nations, states, that the Dutch entered into an alliance with them, which con- 
tinued without any breach on either side, until the English conquered the colony 
in 1664. Friendship and protection were then renewed, and the Indians, he 
says, observed the alliance on their part strictly to his day; and we know that 
their fidelity continued unshaken down to the period of our revolution. On 
one occasion, the colonial assembly, in their address to the governor, expressed 
their abhorrence of the project of reducing the Indians by force, and possessing 
themselves of their lands; for, to the steadiness of these Indians to the interest of 
Great Britain, they said they owed, in a great measure, their internal security. 
The colony governors constantly acknowledged their friendship and services. We 
have, on the other hand, in favour of the colony, the report of a committee of 
congress, to which I have already alluded, 'that the colony of New York had 
borne the burden, both as to blood and treasure, of protecting and supporting 
the six nations for more than one hundred years, as the dependents and allies of 
the government.' 

" After all this, who will hesitate to say, that it was worthy of the character 
of our people, enjoying so great a superiority over the Indians, in the cultivation 
of the mind, in the lights of science, the distinctions of property, and the arts 
of civilized life, to have made the protection of the property of the feeble and 
dependent remnants of the nations, within our limits, a fundamental article of 
the government ? It is not less wise than it is just, to give to that article a benign 
and liberal interpretation, in favour of the beneficial end in view. We ought to 
bear in mind, when we proceed to the consideration of the subject, that the article 
was introduced for the benefit and protection of the Indians, as well as for our 
own good, and that we are bound to the performance of it, not only by duty, but 
by gratitude. The six nations were a great and powerful confederacy, and 
our ancestors a feeble colony, settled near the coasts of the ocean, and along the 
shores of the Hudson and the Mohawk, when these Indians first placed them- 
selves, and their lands, under our protection, and formed a covenant chain of 
friendship that was to endure for ages. And when we consider the long and 
distressing wars in which the Indians were involved on our account with the 
Canadian French, and the artful means which were used, from time to time, to 
detach them from our alliance, it must be ..granted that fidelity has been no 
where better observed, or maintained with a more intrepid spirit, than by these 
generous barbarians." pp.723 — 725. 

"The act of March 15th, 1799, considers the Oneidas as very defenceless; and, 
in order to protect them from imposition, it directs the attorney of the district to 
advise and direct them in all controversies that may arise between the tribe, or 
any individual thereof, and any other person, and to defend suits instituted 
against them, and to institute suits for them, and particularly for trespasses 
committed upon their lands." p. 732. 

This last paragraph is commended to the particular attention of congress. 
The state of New York provided, at the public expense, that the small tribe of 
Oneidas should have a competent legal adviser, in all their exposures to fraud 
and imposition. Does it not become the magnanimity, I might say the justice, 
of our national government to provide immediately, and at the public expense, 



115 



that the Cherokees should have, in their present difficult circumstances, as able 
and independent and disinterested legal advisers and advocates, as can be found 
in the United States ? They are precisely in the condition of a man, whom the 
English law describes, (and our law too,) asinops consilii, and for whom counsel 
should therefore be provided, at the expense of the government. In the selection 
of the learned and honourable men, to whom this high trust should be confided, 
the wishes and feelings oft he Cherokees themselves should doubtless be consulted. 

The secretary of war, in a letter addressed to the Rev. Eli Baldwin, dated 
Rip Raps, Aug. 25, 1829, asks the following question: "What would the author- 
ities of the state of New York say to an attempt, on the part of the six nations, 
to establish, within her limits, a separate and independent government ?" By 
a diligent perusal of the foregoing extracts, and especially by such a perusal of 
the whole case, the secretary of war will ascertain what the authorities of the 
state of New York have said on this subject. 



EXTRACTS FROM JUDGE STORY'S CENTENNIAL DISCOURSE. 

The legislature of Georgia says, that the governments of Europe, and colonies 
of Europeans, asserted the right of driving Indians from their lands by virtue of 
discovery. The reader has seen that chief justice Marshall and chancellor Kent 
hold a doctrine directly opposed to such an assumption. It may be interesting 
to see what another learned judge, who is worthy to be associated with the 
other two, has said on this subject. 

" Our forefathers did not attempt to justify their own emigration and settle- 
ment, upon the European doctrine of the right of discovery. Their patent 
from the crown contained a grant of this right; but they* felt there was a more 
general question behind. ' What warrant have we to take that land, which is, 
and hath been of long time possessed by others, the sons of Adam ?' Their 
answer is memorable for its clearness, strength, and bold assertion of prin- 
ciples. That which is common to all (said they) is proper to none. This sav- 
age people ruleth over many lands without title or property. ' Why may not 
Christians have liberty to go and dwell amongst them in their waste lands ? 
God hath given to the sons of men a two-fold right to the earth. There is a 
natural right and a civil right. The first right was natural, when men held the 
earth in common. When afterwards they appropriated some parcels of ground, 
by enclosing and peculiar manurance, this in time got them a civil right. There 
is more than enough land for us and them. God hath consumed them with a 
miraculous plague, whereby the greater part of the country is left void of inha- 
bitants. Besides, we shall come in with the good leave of the natives.' Such 
arguments were certainly not unworthy of men of scrupulous virtue. They 
were aided by higher considerations, by the desire to propagate Christianity 
among the Indians; a desire, which is breathed forth in their confidential papers, 
in their domestic letters, in their private prayers, and in their public devotions. 
In this object they were not only sincere, but constant. So sincere antTso con- 
stant, that one of the grave accusations against them has been, that in their re- 
ligious zeal, they compelled the Indians, by penalties, to attend public worship, 
and allured them, by presents, to abandon their infidelity. In truth, the propa- 
gation of Christianity was a leading motive with many of the early promoters 
of the settlement; and we need no better proof of it, than the establishment of 
an Indian school at Harvard college to teach them the rudiments of Christian 
faith. * 

" Whatever, then, may hare been the case in other parts of the continent, it is 
a fact, and it should not be forgotten, that our forefather never attempted to 
displace the nations by force, upon any pretence of European right. They occu- 
pied and cultivated what was obtained by grant, or was found vacant. They 
constantly respeeted the Indians in their settlements and claims of soil. They 



116 



protected them from their enemies when they sought refuge among them. — 
They stimulated no wars for their extermination. During the space of fifty 
years, but a single case of serious warfare occurred : and though we cannot but 
lament the cruelties then perpetrated, there is no pretence, that they were the 
aggressorsin the contest. Whatever complaints, therefore, may be justly urged 
by philosophy, or humanity, or religion, in our day, respecting the wrongs and 
injuries of the Indians, they scarcely touch the Pilgrims of New England. "Their 
hands were not imbrued in innocent blood. Their hearts were not heavy with 
crimes and oppressions engendered by avarice. If they were not wholly Without 
blame, they were not deep in guilt. They might mistake the time, or the mode 
of christianizing and civilizing the Indians; but they did not seek pretences to 
extirpate them. Private hostilities and butcheries there might be, but they 
were not encouraged or justified by the government. It is not, then, a just re- 
proach, sometimes cast on their memories, that their religion narrowed down its 
charities to Christians only; and forgot, and despised, and oppressed these for- 
lorn children of the forest." pp. 72 — 74. 



TREATY WITH THE CHOCTAWS. 

The fourth article of the treaty of 1820, is in the following- words : — 

" The boundaries hereby established between the Choctaw Indians and the 
United States, on this side ofthe Mississippi river, shall remain without alteration 
until the period at which said nation shall become so civilized and enlightened as to 
be made citizens of the United States ; and Congress shall lay off a limited parcel 
of land for the benefit of each family, or individual, in the nation." 

In the subsequent treaty, negotiated by Mr. Calhoun, Jan. 20, 1 825, the same 
subject was taken up, as follows : 

" It is further agreed, that the fourth article of the treaty aforesaid shall be so 
modified, as that the Congress of the United States shall not exercise the power 
of apportioning the lands, for the benefit of each family or individual, of the 
Choctaw nation, and of bringing them under the laws of the United States, but 
with the consent ofthe Choctaw nation." 

Tn framing the fourth article here referred to, the intention must have been, 
either that the Choctaws should ultimately form a territory by themselves, 
which should be taken under the care of the general government ; or that they 
should become citizens of the State of Mississippi, and thus citizens of the 
United States. But neither of these things were to take place till the Choctaws 
should have become enlightened, and Congress should have declared them to be 
so, and should have made an apportionment of their lands. 

In the last treaty, framed less than five years ago, it is solemnly stipulated, 
that the Choctaws shall not be brought under the laws of the United States in 
any sense, "but with the consent of the Choctaw nation." This is the 
same thing as to say, that the Choctaw nation is left where it was origi- 
nally, and where the other Indian nations now are : viz. under their own 
laws, and not under the laws of any state nor of the United States. 

The President of the United States, in his late Message to Congress, says 
very truly : — "Upon this country, more than any other, has, in the providence of 
God, been cast the special guardianship of the great principle of adherence to 
written constitutions." Let it be remembered that the constitution of the United 
States is express and positive, in regard to the binding nature of treaties ; and 
that, by a solemn stipulation in our last treaty with the Choctaws, negotiated 
by the Secretary of War, now Vice President of the United States, that nation 
of Indians is not to be brought under our laws BUT WITH ITS OWN 
CONSENT. 

The End. 



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